Attorney Grievance Commission v. Sheinbein

812 A.2d 981

372 Md. 224

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Sol SHEINBEIN.

Misc. AG No. 37, Sept. Term 2001.

Court of Appeals of Maryland.

December 16, 2002.

Melvin Hirshman, Bar Counsel and John C. Broderick, Asst. Bar Counsel for the Attorney Grievance Com'n of Maryland, for petitioner.

Melvin Bergman, Beltsville, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ CATHELL, Judge.

Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, and at the direction of the Review Board, filed a petition with this Court seeking disciplinary action against Sol Sheinbein, respondent,¹ pursuant to Maryland Rule 16-709(a).² The petition alleges that respondent violated provisions of Rule 8.4 of the Maryland Rules of Professional Conduct (MRPC) based on complaints from Bar Counsel and Henry R. Quintero.³ The relevant provisions of Rule 8.4 provide that:

"It is professional misconduct for a lawyer to:

...

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; ...

(d) engage in conduct that is prejudicial to the administration of justice."

Pursuant to Maryland Rule 16-709(b) and 16-711(a),⁴ this Court referred the matter to Judge S. Michael Pincus of the Circuit Court for Montgomery County to conduct an evidentiary hearing and to make findings of fact and conclusions of law with respect to respondent's case. Respondent was duly served and he filed a timely answer to the petition. On March 20, 2002, that evidentiary hearing took place. Judge Pincus heard testimony from two witnesses, Paul T. Stein, attorney for Samuel Sheinbein and later for respondent, and Detective Paula Hamill, the primary detective investigating the murder of Alfredo Tello, Jr.⁵ The remaining evidence admitted at the hearing included the application for a search warrant and the warrant that had been served upon respondent prior to any of respondent's actions giving rise to the instant proceeding. Additionally, respondent's admissions were also among the evidence considered. Specifically, the hearing judge admitted the following:

"[T]he Statement of Charges in State of Maryland v. Sol Sheinbein, District Court of Maryland for Montgomery County, Case No. 6D00071133; an Arrest Warrant on Charging Document, Warrant No. D980442735 in State of Maryland v. Sol Sheinbein, District Court of Maryland for Montgomery County, Case No. 6D00071133; Application for Statement of Charges in State of Maryland v. Sol Sheinbein, Case No. 6D00071133; an Application for Search and Seizure Warrant in Montgomery County, Maryland dated September 19, 1997, and the resultant Search and Seizure Warrant issued on September 19, 1997, for the residence located at 2940 Birch Tree Lane, Silver Spring, Montgomery County, Maryland, then the residence of the Respondent and his family, which included his son Samuel. Finally the Court received, as part of Petitioner's evidence, the transcript of the Secret Grand Jury Proceeding conducted on September 25, 1997, which contained the eighty-two page transcript of the testimony of the Respondent, Sol Sheinbein on that date."

After the hearing, Judge Pincus found, by clear and convincing evidence, that respondent violated MRPC 8.4. Respondent filed in this Court several exceptions to Judge Pincus' findings of fact and conclusions of law. We overrule these exceptions and accept the hearing judge's findings of fact and conclusions of law. Considering respondent's egregious conduct, the appropriate sanction is disbarment.

I. Facts

A. The Hearing Judge's Findings of Fact

From the evidentiary record below, we include part of Judge Pincus' findings of fact relevant to our inquiry and we hold that they were established by clear and convincing evidence:

"1. On or about September 16 or 17, 1997, Alfred Enrique Tello, Jr. was the victim of a murder that took place in Montgomery County, Maryland.

2. On September 19, 1997, at approximately 11:00 a.m., the body was discovered in the garage on the premises located at 14041 Breeze Hill Lane in Montgomery County, Maryland.

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4. Upon discovery [of the body] the homicide division of Montgomery County Police Department was notified.

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11. During a canvas of the neighborhood pursuant to the discovery of the body, investigators located a witness who observed a dark green car (possibly a Camaro) and an older white car (possibly a Toyota) parked in front of the Breeze Hill Lane location.

12. Two individuals were observed and described as one being a white male with an unkempt appearance, and another who was described as a dark-complected white or possible Hispanic male, 5'11" in height with an athletic build weighing between 180 and 200 pounds and having dark hair. This witness identified these individuals as having been in the front yard of the residence on either September 16 or 17, 1997.

...

15. These male subjects were described as being, white male, age 19 to 21, 5'10" with dark hair, athletic build, wearing a dark tee shirt and dark pants and the other subject as a white male, 20 years of age, with medium brown hair, husky build, wearing tan pants and a white tee shirt.

16. The investigators, based upon the witnesses observations, searched the pathway from Birch Tree Lane, and with the use of cadaver dogs, traced what appeared to be droplets of blood from the Breeze Hill Lane address to a location on Birch Tree Lane that ended at the street across from 2940 Birch Tree Lane, the residence of Samuel Sheinbein.

17. The Sheinbein residence on Birch Tree Lane is directly behind the residence at 14041 Breeze Hill Lane where the victim's body was found.

18. Investigators identified that Robert Israel Sheinbein, the brother of Samuel Sheinbein, and elder son of the Respondent herein, owned a Pontiac Firebird and listed the 2940 Birch Tree Lane address on his registration.

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22. Homicide investigators ascertained Samuel Sheinbein was seventeen years of age, 5'10" in height with a muscular build and presented an appearance to be Hispanic or a light skinned black.

23. They also determined, from the son of the owner of the Breeze Hill Lane property, that Sheinbein lived on Birch Tree Lane, behind the Breeze Hill Lane property, and drove a dark green Pontiac Firebird with tinted windows, not unlike the body style of the Camaro one witness identified as being in the street in front of the Breeze Hill Lane premises.

24. All of the above information was incorporated into an affidavit in support of an application for a search warrant presented to a District Court judge in Montgomery County on September 19, 1997.

25. The search warrant was requested to perform a search of the premises located at 2940 Birch Tree Lane, Silver Spring, Montgomery County, Maryland in connection with the investigation of the murder of Mr. Tello.

26. The warrant was sought to search the Sheinbein residence for evidence of a crime of first degree murder ... and any other evidence relating to the crime of first degree murder.

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28. On September 19, 1997, the search warrant and supporting affidavit, incorporating the above referred facts with greater specificity and additional disclosures, was presented to the Respondent herein.

29. The Respondent at the time of the execution of the search warrant read the contents and observed the search of his residence, particularly the garage.

30. The search of Respondent's premises took approximately five hours and as a result investigators seized receipts, a box for a circular saw, rubber gloves, a shirt with apparent blood stains, and a police scanner.

31. At the time of the execution of the search warrant, when the documents were presented to the Respondent, and after the items were observed and seized pursuant to the warrant, a homicide detective indicated to the Respondent the seriousness of the matter under investigation and requested the Respondent contact her if he heard from his son, which he indicated he would do.

32. At the time of the presentment of the search warrant and its execution, the Respondent was asked if he owned a `red Ron Rico' garden cart. Respondent indicated he did but, when his garage was searched the cart was not found.

33. That cart in fact was the one recovered at the homicide scene.

34. The following day, September 20, 1997, at 1:30 p.m., the homicide detective who had served the search warrant upon the Respondent spoke with him by telephone. She inquired whether or not Respondent had heard from his son Samuel and was informed he had not.

35. At that time she was advised Respondent had retained counsel.

36. That was the last time she spoke with Respondent.

37. A warrant was issued for the arrest of Samuel Sheinbein on the evening of September 20, 1997. Before the arrest warrant could be executed and served upon Samuel Sheinbein, Samuel fled Maryland and left the United States to travel to Israel, upon the suggestion of the Respondent and with his aid and assistance. (Grand Jury Transcript, p. 65, lines 3-13, p. 65, lines 15-25, p. 67, lines 1-17)

38. The Respondent paid for the plane ticket to Israel, albeit a round trip ticket, and brought the passport of his son, Samuel Sheinbein, to him in New York to enable him to leave the United States.

39. The Respondent, pursuant to a grant of immunity, testified before the Grand Jury for the State of Maryland in Montgomery County on September 25, 1997.

40. Prior to that grant of immunity, Respondent and his family had invoked their Fifth Amendment privilege against self-incrimination and, after being brought before a judge of the Circuit Court of Montgomery County, where they again collectively asserted their Fifth Amendment privilege, a ruling was made to compel their testimony.

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42. The Respondent admitted to the Grand Jury, during his sworn testimony, that he was aware of his son's acquaintance with a friend by the name of Aaron Needle, a co-defe

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