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Attorney G rievance C ommis sion of M aryland v . Sol Sheinb ein AG No. 37, September Term, 2001 Headnote: Disbarment is warranted for an attorne y who violated M RPC 8.4(b) an d (d), given the attorney's egregious conduct which was both criminal in nature and prejudicial to the administration of justice, which included assisting a known murder suspect in absconding from the United States.

IN THE COURT OF APPEALS OF MARYLAND Misc. Docket (Subtitle AG) No. 37 September Term, 2001

Attorney Grievance Commission of Maryland

v.

Sol Shein bein

Bell, C. J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ.

Opinion by Cathell, J. Eldridge and Raker, JJ. dissent

Filed: December 16, 2002

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 Shein bein, respon dent, 1 pursuant to Ma ryland 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 pro visions of R ule 8.4 prov ide that: "It is professional misconduct for a lawyer to: ... (b) commit a criminal act that reflects adversely on the lawyer's h onesty, trustwo rthiness or fitne ss as a law yer in othe r respec ts; ... (d) eng age in c onduc t that is pre judicial to the adm inistratio n of jus tice." 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

Mr. Sheinbein was admitted to the Maryland Bar on June 24, 1971 and is engaged in the practice of patent law from Israel, his current place of residence. Rule 16-709(a) states that "[c]harges against an attorney shall be filed by the Bar Counsel acting at the direction of the Review Board." We note that this reference is to Md. Rule 16-709(a) as stated in the 2001 edition of the Maryland Rules. What was formerly comprised in Rule 16-709 is now encompassed in several different rules in the 2002 edition.
3 2

1

See BC Docket Nos. 2000-113-16-6; 2000-222-00-6.

Rule 16-709(b) states that the "Court of Appeals by order may direct that the charges be transmitted to and heard in any court and shall designate the judge or judges to hear the charge s and th e clerk r espon sible fo r mainta ining th e record in the pr oceed ing." Rule 16-711(a) states that a "written statement of the findings of facts and conclusions of law shall be filed in th e record of the p roceed ings an d copie s sent to a ll parties." We note that these references to Md. Rules 16-709(b) and 16-711(a ) are as stated in the 2001 e dition o f the M aryland R ules. What was formerly comp rised in Ru le 16-709 is now encompassed in several different R ules in the 2002 edition. What was Rule 16-711(a) is now encompassed in Rule 16-759.

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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 witnes ses, Pau l T. Stein, a ttorney 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 eviden ce conside red. Specif ically, the hearing ju dge adm itted the follow ing: "[T]he Statement of Charges in State of M aryland v. Sol S heinbein, District Court of Maryland for Montgo mery County, Case No. 6D00071133; an A rrest Warrant on Charging Document, Warrant No. D980442735 in State of Maryland v. Sol She inbein, District Court of Ma ryland for Montgom ery Cou nty, Case No. 6D00071133; Application for Statement of Charges in State of Maryland v . Sol Sheinb ein, 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."

Respondent's alleged misconduct concerns his actions in sending his son, Samuel Sheinbein, to Israel after re sponden t had been told by his son th at the son had killed M r. Tello and after respondent knew that Samuel was being investigated by Detective H amill in relation to the murder of Mr. Tello. -2-

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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. conduct, th e approp riate sanction is disbarme nt. 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 convincin g 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 lo cated at 140 41 Breez e Hill Lan e in Montgomery County, Maryland. ... 4. Upon discovery [of the body] the homicide division of Montgomery County Police Department was notified. ... Considering respondent's egregious

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 in dividuals w ere observ ed and de scribed as o ne being a white male with an unkempt appearance, and another who was described as a darkcomplected white or p ossible Hisp anic male, 5 '11" in heigh t with an ath letic 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 -3-

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 m ale, 20 years of age, with med ium brown hair, husky build, w earing tan p ants and a w hite 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. ... 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 de termined, fr om the so n of the ow ner of the B reeze Hill Lane prop erty, that Sheinbein lived on Birch Tree Lane, behind the Breeze H ill 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 a bove info rmation w as incorpo rated into an affidavit in support of an application for a search warrant prese nted 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 Sp ring, Mo ntgo mery Cou nty, 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 murde r . . . and any other evidence relating to the crime of first degree m urder. ... 28. On Sep tember 19 , 1997, the se arch war rant and su pporting af fidavit, incorporating the above referred facts with greater specificity and additional

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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 apparen t blood stains, and a police scan ner. 31. At the time of the execution of the search w arrant, when th e docum ents 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 wou ld do. 32. At the time of the presentment of the search warrant and its execution, the Respondent was asked if he owned a `red R on Rico' g arden 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 Respon dent spok e with him by telephone. She inquired whether or not Respondent had heard from his son Sam uel and w as inform ed he had not. 35. At that time s he was a dvised R esponde nt had retain ed couns el. 36. That wa s the last time sh e spoke w ith Respo ndent. 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 trave l to Israel, upon the suggestion of the Respondent and with h is aid and assistance. (Grand Jury Transcript, p. 65, lines 3-13, p. 65, lines 1525, p. 67, lines 1-17) 38. The Re sponden t paid for the plane ticket to Israel, albeit a rou nd 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 Mon tgomery Co unty 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 ju dge of the Circuit Court of M ontgomery Coun ty, where they again collectively asserted their Fifth Amendment privileg e, a ruling was mad e to c omp el the ir testimo ny. -5-

... 42. The Respo ndent admitted to the G rand Jury, during his sworn testim ony, that he was aware of his son's acquaintance with a friend by the name of Aaron Need le, a co-defendant in the murder of Alfred Enrique Tello, Jr. The Respondent's testimony, in connection with his son Samuel's relationship to Aaron Ne edle, indicated he did not w ish his son to associate with Needle due to their both having run afoul of the juvenile authorities. 43. Responden t's protestations to the contrary notwithstanding he learned, shortly prior to the death of Mr. Tello, that Needle and his so n Samuel w ere asso ciating again , and wer e in f act a ssoc iatin g quite closely and freq uently. 44. The Respondent, in his testimony to the Grand Jury, under oath, indicated he was unaw are of his son's association w ith the victim, Alfred Enrique Tello, Jr., also known as Freddie Tello. 45. The Respon dent furthe r testified that, in response to a specific question, he was uncertain whether or not a Makita circular saw or box for such a saw was in his garage. 46. The Respondent admitted he did not have much dealing within the garage, that it w as in fact the d omain alm ost exclusiv ely of his son S amuel. 47. Under questioning at the Grand Jury, the Respondent under oath did testify that a blue tarp was known to have been purchased for the use of his son in protecting a jet ski which they had purchased for him. 48. The Responden t further testified under oath befo re the Grand Jury that on Wednesday, September 17, 1997, at approximately 9:00 p.m. he returned to his home where his son Samuel was found. At that time he had been contacted on his cell phone by his son Samuel and requested to bring home a pizza for their dinner. He did so but, u pon his return Samuel said to him `boy that was quick' and upon entering the house Respondent noticed a very strong odor. 49. He observed a fan standing in the kitchen to dissipate the smell and inquired of Sam uel, relating to th e fan, `wh at the hell is that?' Samuel replied he had accidentally discharged the battery for h is jet ski and tha t, while recharging it, he connected it improperly and, as a result, while he was in his bedroom , the battery caug ht fire and th at was the c ause of the smell. 50. Respondent testified his son, upon questioning why he had not attempted to charge the battery in the garage, indicated a cord couldn't reach and therefore he did it in the kitchen. 51. Respon dent did no t seek to inve stigate and, alth ough the s mell permeated the entire house, including the upstairs bedroom area, went about his b usin ess w ithout fu rther inquiry. -6-

52. The Respondent's testimony went on to reveal that later on the night of Wed nesd ay, September 17, 1997, at approximately 1:15 a.m., the morning of Thu rsda y, September 18, 1997, he observed a car parking across the street from his house. He noted this was unusual as all the homes had sufficient driveway and garage space and did not requ ire on the stree t parking fo r his neighbors. 53. He observed an individual exit the car and walk up the street towards the right of his house. 54. Respon dent saw the driver w alking on h is property, to the sid e of his garage, and then returning to the trunk of his car, opening the trunk, taking out a bag, which appeared like a shopping bag, and a gain appro ached his p roperty to the side of the garage. 55. At that time he called the police and, anticipating their arrival, opened the fron t door. When the Respondent opened the door he was confronted by the individual who he then recognized to be Aaron Needle. 56. At that time th e police arriv ed and N eedle exp lained, in resp onse to what he was doing there, that he was doing `nothing, S ir nothing' but that he came by to see Sam uel and `give him so mething'. 57. The Respondent elected not to proceed any further, identified the individual a s someon e he knew to the police a nd thereup on they left. 58. The Respondent then questioned Needle about what he was returning to Samuel. Need le indicated he was return ing Samuel `his garb age bags'. 59. The Re sponden t's testimony w ent on to rela te he invited N eedle into his home and observed, what appeared to be, a box of garbage bags, and a yellow snak e light. 60. Upon further inquiry to Needle, Needle explained he had in fact come over to meet w ith Sam uel and go out w ith him. He indicated he and Samuel were going to se e `Maria'. N eedle identif ied her as a Puerto Rican girl who Sam uel h ad m et an d wa nted to visit w hile h er pa rents we re aw ay. 61. After the disclosures of the investigator, the review of the supporting affidavit and the search warrant, the Respondent had sufficient k nowled ge to believe his son was a suspect and probable perp etrator of the murder of Mr. Tello. 62. In addition to the facts contained in the affidavit to support the application for the search warrant, and the ob servance o f the items se ized in his own garage, Respondent also observed ashes on his garage floor, which investigators concluded was the situs of the dismembering and attempted immolation of the bo dy of Alfred Enriqu e Tello, Jr. At the time the Application for Search Warrant and Search Warrant were presented to the Respondent by Detective Hamill on September 17, -7-

1997 [6], Detective Hamill learned the Respondent was a lawyer and was advised by him that he had an earlier contact from Samuel by phone. On more than one occasion, on the evening of September 19, 1997, between 9:30 and approxim ately midnight, Detective Hamill was assured by the Respondent that he would c ontact her w henever h e heard fro m his son and otherwise alert her of his whereabouts. His representation to the contrary, he failed to do so although he did speak to Detective Hamill by phone at approximately mid-day on Satu rday, Septemb er 20, 1997 . During th at conversa tion, althoug h his son Robert had a telephone conversation with Samuel, the substance of which was relayed to the Respondent, he [respondent] failed to alert her [Detective Hamill] of that c ontact. Instead, he informed her the family had retained Paul T. Stein, Esqu ire, on beha lf of Sam uel and tha t, in the future, should there be any contact w ith Samue l, it should be th rough co unsel. 63. Responden t's eldest son, Robert, received a telephone call at or about 10:00 a.m., September 20, 1997. He relayed the substance of that conversation to his parents that Samuel would call back at approximately 3:00 p.m. At that time both Robert and the Respondent spoke to S amuel. Th ey urged him to come home which he indicated he was not prepared to do as he was in Ocean City. Respondent neither informed counsel, Paul T. Stein, Esquire, nor Detective Hamill, of his contact with Samuel at this time, nor did he otherwise convey the fact that he believed his son to be in Ocean City, Maryland. 64. At some time between 1:00 p.m. and 3:00 p.m. on September 20, 1997, Samuel did aga in call R obert. Samuel w as to call back at w hich time h e would speak to his father. When he did so his father indicated Samuel should `get away from A aron'. 65. Respon dent conte nds his son Samuel e xpressed s uicidal ideatio n in connection with Aaron Needle also having expres sed a desire to comm it suicide. It was at this time the Respondent told his son he should go to Israel. 66. In furtherance of the efforts to facilitate Samuel's flight from the United States, the Respondent purchased airplane tickets for Samuel to depart from New Y ork just prior to midnig ht September 21st and arrive in Tel Aviv, Israel at approximately 10:00 a.m. Eastern time on Monday, September 22nd . 67. When the Respondent met with Samuel on September 21 st he was to ld he should take the Firebird, which Samuel and Needle drove to New York, and which contained a sawed off shotgun, stun gun and various handwritten notes

We note that the hearin g judge erre d when transcribing th is date into these findings of fact. Consistent with the transcript of Detective Hamill's testimony, the date the warrant was presented to respondent was September 19, 1997. -8-

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from Samuel and Needle. The Court finds that at no time while the Respondent was in the company of his son, S amuel, is ther e any indication that Needle was also pres ent o r any longer in Sam uel's com pany. 68. Respon dent did in f act turn ove r this evidenc e of the crim e to his counsel who in turn made it available to the investigating authorities. Although the Respondent was unaware of the issuance of the arrest warrant on Septe mber 21, 1997, he was aware, from his observations of the results of the search warrant, his scrutiny of the application for the Search Warran t, and his discussions with Detective Hamill, that his son was a focus of the investigation and was a person who the investigating authorities expressed a great desire to interview at least as a w itness if not a su spect. Nonetheless, Respondent obtained Samuel's passport prior to leaving Maryland and brought it to New York w here he met his son. Also, prior to the Responden t's suggestion s that his son leave the United States for Israel, he was aware h is son had adm itted to killing T ello . (Transcript, p.50, lines 1625, p.51 -56, line s 1-14) ." [Alte rations a dded.][ Emph asis add ed.] B. The Hearing Judge's Conclusions of Law The hearing judge subsequently concluded that respondent violated MRPC 8.4(b) and (d). First, the hearing judge found that respondent's actions satisfied the elements of the common law offense of obstructing or hindering a police officer, which include: "(1) A po lice o ffic er en gaged in the p erfo rmance o f a du ty; (2) An act, or perhaps an omission, by the acc used[ , here the Respo ndent,] which obstructs or hinders the officer in the performance of that duty; (3) Knowledge by the accused [, Sol Sheinbein,] of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constitu ting elem ent (2)." Cover v. State , 297 Md. 398, 413, 466 A.2d 1276, 1284 (1983) (alterations added). Judge Pincus specifically found that responde nt was "well aw are of the duty that the police officer, Detective Paula Hamill, was in the process of performing, i.e. the investiga tion of the d eath

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of Alfred Enrique Tello, Jr." and that respondent knew of the Detective's desire to question his son, who respondent knew to be responsible for the death of Mr. Tello. In addition, respondent knew that his subsequent arrangements to assist his son to fle e to Israel, would frustrate that officer's performance of her duties. Judge Pincus did not find respondent's argumen t, that respondent's intent was merely to save his son from Mr. N eedle's influence and his son's alleg ed threats of suicide, to be credible an d we are n ot prepared to disturb that credibility determination. He found that the facts s atisfied the req uisite elemen ts of common law obstruction, and ruled that respondent had v iolated MRP C 8.4(b). The hearing judge determined that respondent also violated MRPC 8.4(d) by "engag[ing] in conduct that is prejudicial to the administration of justice." This conclusion was based on the court's assessment that respondent's actions were criminal in nature and impaired the public's confidence in the en tire legal profession. Reciting several egregious facts, the hearing judge concluded that respondent's sending his son to Israel in spite of the knowledge that his son was an "integral party to a criminal investigation" was "in direct contravention to the oath he swore in open court when he was admitted to the Bar of the Court o f App eals of M aryland o n June 24, 197 1." On May 22, 2002, responde nt filed in this Court several exceptions to Judge Pincus' findings of fact and conclusions of law. Petitioner did not file any exceptions. II. Discussion This Court reviews attorney disciplinary proceedings acc ording to the standard

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articulated in Attorney Grievan ce Com mission v. G avin , 350 Md. 176, 189, 711 A.2d 193, 200 (1998): "This Court has original and complete jurisdiction over attorney disciplinary proceedings. Md. R ule 16-709b ; Attorney Grievance Comm'n v. Adams, 349 M d. 86, 93, 70 6 A.2d 1 080, 108 3 (1998); Attorney Grievance Comm 'n v. Glenn , 341 Md. 448, 470, 6 71 A.2d 463, 473 (1996); Attorney Grievance Comm'n v. Kent , 337 Md. 361 , 371, 653 A.2d 9 09, 914 (1995); Attorney Grievan ce Com m'n v. Po well , 328 Md. 276, 287, 614 A.2d 102, 108 (1992). Under our independent review of the record, we must determine whether the findings of the hearing judge are based on clear and convincing evidence. The `hearing court's findings of fact are prima fac ie correct and will not be disturbed unless they are shown to be clea rly erroneous.' Attorney Grievance Comm'n v. Garland , 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm 'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 50 5 (199 3)). Accordingly, the ultimate decision as to whether a lawyer has violated profession al rules rests w ith this Cour t. Garland , 345 Md. at 392, 692 A.2d at 46 9; Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 599, 66 7 A.2d 659, 66 3 (199 5)." The case sub judice presents this C ourt with a f actual scen ario that has not b een previo usly before this C ourt. A. Absence of Self-Defense in Findings of Fact Respondent takes no exception to the hearing judge's Findings of Fact 1 through 67. Respondent does however except to the last sentence of Finding of Fact 68. The sentence in question states, "Also, prior to the Respondent's suggestions that his son leave the United States for Israel, he was aware his son [Samue l Shein bein] h ad adm itted to k illing Te llo." (Alteration added). The basis for respondent's exception is that the hearing judge omitted a portion of r esponde nt's Grand Jury testimony, w hich, accord ing to respondent, causes the remaining language to be misleading . The testimony in question relates to resp ondent's -11-

knowledge of the details of Samuel Sheinbein's involvement in the Tello killing, as admitted by respondent's son. We overrule this exception, as the hearing judge's omission of this testim ony is irrelevant and, thus, not clearly erroneous. A hearing court's findings of fact are "prima fac ie correct and will not [be] disturb[ed] unless they are shown to be clearly erroneous." Attorney Grievance Comm'n v. Goldsborough , 330 Md. 342, 347, 624 A.2d 503, 505 (1993). The disputed omission of any mention of the son's assertion of self defense has little bearing on the outcome o f this procee ding and is therefore, as to this procee ding, irrelevan t.7 It is undisputed that respondent knew, p rior to his action s in encou raging and aiding his so n in absconding to Israel, that his so n had com mitted a ho micide. Re sponden t's inapprop riate conduct stems from sending his son to Israel with the knowledge that Samuel had committed a homicide in Maryland, n ot from the precise circu mstances of Mr. T ello's death or whether a jury might ultima tely credit his son's assertion of self defense.8 The disputed finding does no more than state this in mo re concise te rms; it does not suggest any improper interpretation.

The only possible relevance of this self-defense testimony would b e as to whether respondent had the requisite intent to hinder D etective Hamill's investigation. The hearing judge spo ke to this and it will be discu ssed by this Co urt infra. Although respondent stated that his son claimed self-de fense, that issue is for a jury to decide. Samuel was eventually charged with a felony. In addition, in 1999, Samuel Sheinbein pled guilty in an Israeli court to killing Mr. Tello and was sentenced to twenty-four years in an Israeli prison. He is eligible for parole after sixteen years of imprisonment and he is eligible to apply for weekend f urlough privileges after on ly four year s. See Jesse Hallee, The Sheinbein Legacy: Israel's Refusal to Grant Extradition as a Model o f Comp lexity , 15 Am. U. Int'l L. R ev., 667, 705-06, 706, n.21 4 (2001). -128

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B. Rule 8(b) This Court has held that Bar Cou nsel's standard of proof for a theory that respondent's actions violate the MRPC by constituting a crime, albeit no criminal con viction results, is to show that the underlying conduct constitutes a crime by clear and convincing evidence; not by the crim inal "be yond a re asonab le doub t" stand ard. See Attorney Grievance Comm'n v. Childress, 364 M d. 48, 55, 77 0 A.2d 6 85, 689 (2 001); Attorney Grievance Comm'n v. Garland , 345 Md. 383, 390, 692 A.2d 465, 468 (1997); and Attorney Grievance Comm'n v. Proctor, 309 Md. 412, 418, 524 A.2d 773, 776 (1987). Using the clear and convincing standard, we hold that Bar C ounsel pre sented suf ficient facts to illustrate that respondent committed the crimes of obstructing or hindering a police officer. As such, resp ondent's conduct violates M RPC 8.4(b). 1. Common Law Obstruction Respondent excepts to the hearing judge's finding that he committed the common law offense of obstructing or hindering a police officer through his actions of Sunday, September 21, 1997. His actions include suggesting to his son, Samuel, that Samuel flee to Israel, transporting of his son's passport from Maryland to New York City to facilitate the fleeing, purchasing of his son's plane ticket to Israel an d ensuring that his son b oarded tha t plane, all the while knowing that his son had killed Mr. Tello. We overrule this exception. The Maryland common law elements for the offense of obstructing or hindering a police off icer are:

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"(1) A po lice o ffic er en gaged in the p erfo rmance o f a du ty; (2) An act, or perhaps an omission, b y the accused which o bstructs or hinders the officer i n the perf ormance of th at du ty; (3) Knowledge by the accused of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constitu ting elem ent (2)." Cover , 297 Md. at 413, 466 A.2d at 1284. Th e primary foc us of respo ndent's ex ception is to the hearing judge's finding in reference to the fourth elemen t, responden t's intent to obstruct or h inder De tective Ham ill. There is no challenge to the establishment of either elements (1) or (3), that Detective Hamill was "a police officer engaged in the performance of a duty" and that respondent had "knowledge ... of fac ts comp rising ele ment (1 )," respec tively. Id. Respon dent, in fact, had direct personal k nowled ge that De tective Ham ill was involved in the investigation of Mr. Tello's death. Respondent not only had specific conversation s with De tective Ham ill regarding her investigation of M r. Tello's death, but he examined the search warrant and the application f or the wa rrant. Judge Pincus specifica lly found that the application for the search warrant was examined by respondent while the search was being executed. The applicatio n clearly describes the details of the finding of Mr. Tello's body, (an obvious homicide), the observations of witnesses of two persons transporting some thing in a cart with a blue tarp cover similar to a cart and tarp owned by respondent in the direction of the house where the victim's body was found, that the cart was found in proximity to the body along with the blue tarp, that a trail of blood droplets led back to the vicinity of respondent's house, that -14-

respondent's son met the witnesses' description of one of the persons pushing the cart and that the respondent's son, at a relevant time, had obtain ed the locatio n of the ke y that could be used to enter the house where the body was found from the son of the owner of that house. The application clearly stated that the warrant to search responden t's house was being requested for the purpose of seeking evidence "of the crime of murder." Respondent not only read these docume nts, but obse rved the sea rch warra nt's executio n and eve n verbally agreed to alert the Detective of his son's whereabouts. Furthermore, respondent even knew, from his son's own admissions, that his son was in fact the person who killed Mr. Tello. We reject any suggestion that there was a lack of clear and convincing evidence establishing respondent's knowledge that a homicide had occurred and that his son was a primary suspect in a murder. Thus, these two elements are satisfied. Similarly, there is no d oubt that resp ondent's a ctions in dev ising and fa cilitating his son's departure to Israel obstructed and hindered Detective Hamill in the performance of her lawful duties. The se actions d enied De tective Ham ill any opportun ity to pursue

investigatory leads and to contact, question, and subsequently arrest Samuel Sheinbein. Respondent was fully aware that his actions and omissions wou ld impede Detec tive Hamill's investigation. These fa cts more than suffice to satisfy the first three elements of the common law offense of obstructing or hindering an officer. To satisfy the fourth element, there must be a showing, by clear and convincing

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evidence,9 that respondent intended to obstruct or hinder Detective Hamill's performance of her lawful duties. Respondent suggests that the hearing judge's finding of intent ignored our preceden ts that have held that this element requires a finding that the accused have the specific intent to obstruct or hinder the officer. Respondent further alleges that his actual intent, in keeping informatio n from D etective Ha mill and assis ting his son to flee to Israel, was "to prevent his son from committing suicide or being killed in some sort of confrontation with the police." Respondent claims that he conjured the plan that, "as a last resort," put his son in a place, Isra el, "where his son would not be contemplating suicide or running around with a gun in his car." Respondent then cites to events occurring after his son had already fled to Israel and his lack of knowledge regarding the arrest warrant for his son as evidence to expla in respo ndent' s intent. The hearing judge said: "[T]he Court determines and concludes that the Respondent had the commensurate requisite intent to obstruct or hinder Detective Hamill in the perform ance of h er duty. It is long esta blished that: `Unless there is evidence presented to the contrary, the law presumes that a person intends the nature [sic] and probable consequences of his acts. Thus, the requisite criminal intent may be inferred from the d efendan ts [sic] voluntary and knowing commission of an act which is forbidden by law or from the defendant's omission to do an act required by law.'" 10
9

See Childress , 364 Md. at 55, 770 A.2d at 689; Garland , 345 Md. at 390, 692 A.2d 468; and Proctor, 309 Md. at 418, 524 A.2d at 776.
10

Judge Pin cus quote d from the Maryland C riminal Jury Instructions and (contin ued...) -16-

We first look at the hearing judge's findings in regard to the credibility of respondent and determine whether those findings are clearly erroneous. Only then can we determine what respondent knew on Sunday, September 21, 1997, when he committed the acts resulting in this disciplinary ac tion. The h earing judg e specifically fo und that, "W hile the

Responden t's position is that his intent may have been to save his son from the influence of Aaron Needle and the alleged threat of Samuel's suicidal ideation, the Court does not find these assertions to be credible." The question that we must answer is whether this finding of the hea ring judge m eets the clearly erro neous test. The record is replete with facts that support the hearing judge's finding that respondent was not credible in testifying before the Grand Ju ry that his intent w as limited to saving his son from Mr. Ne edle, suicide, o r a shootou t with the po lice. The m ost relevant facts come from respondent's own testimony11 in front of the Gran d Jury for Montgomery
10

(...continued) Com men tary, Second Edition,

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