Every lawyer with significant trial experience has a “problem” judge.  The lawyer and the judge don’t like each other, personally, for any of a variety of reasons ranging from the fact that they campaigned against each other for appointment to the bench to an old, litigation-based rivalry.  In the best case scenario you keep your problem cases away from your problem judge, but that isn’t always possible.  What you do when you face your problem judge can say a lot about your character and your professionalism. 

Or it can say a lot about your devotion to the principle of law.  This is a story about a lawyer who loves the law, apparently passionately, and didn’t respond as well as he might have when he stood in front of his problem judge.  As a result, his license has been suspended for sixty days by the Maryland Court of Appeals. 

On May 15, 2008, attorney Norman C. Usiak appeared before a Frederick County district court judge to defend Ruben Paz-Rubio.  Paz-Rubio was charged with driving without a license.  Paz-Rubio is also an undocumented immigrant.  On the morning of trial, Usiak requested a postponement based on a discovery failure by the prosecution.  The prosecution admitted that had failed to provide discovery to Usiak until shortly before trial and joined the motion.  The Court, however, refused the request because there had been a previous defense postponement.  She offered to move the trial to the afternoon docket to allow Usiak to review the State’s discovery. 

Outside the courtroom, Usiak and the prosecutor, who was green, discussed the case and reportedly Usiak pressured the prosecutor to request a stet.  Usiak told the prosecutor that he believed that if the State made an unopposed stet request, the case would be immediately concluded and that the Court lacked authority to deny an unopposed stet request.  Usiak was eager to get the case off the docket because he knew that his problem judge would not grant stet requests in such cases unless the defendant had already obtained a valid driver’s license, which Paz-Rubio had not.  Usiak believed that if Paz-Rubio pled guilty he would be deported.

That afternoon, the State moved to place the matter on the stet docket and Usiak immediately advised the Court that he did not oppose the motion.  He began packing up and asked to be excused.  Meanwhile, the judge indicated that she was not inclined to grant the motion.  Usiak and the judge argued; Usiak then walked out, despite the judge’s order that he and his client remain in the courtroom.  Paz-Rubio left with Usiak, as his attorney had advised him, and a warrant was issued for his arrest. 

As is standard in Maryland, the disciplinary matter was tried to a judge who issued the following findings of fact:

Prior to the events of May 15, 2008, there was history between Judge Ambrose and Respondent [Usiak].  It undoubtedly, but should not have, played a role in the incident.  The Respondent appears to have wanted to prevail over Judge Ambrose personally.  While there is evidence of the Respondent’s manner of conducting himself, mostly from his own testimony, the conduct of the Respondent appears to be an isolated event.

It appears that Respondent was trying to make a point in Court by the use of improper means.  As such, the conduct is neither corrupt nor immoral.  The character of the conduct was annoying and disrespectful, and evinces a lack of confidence in the judicial process.

The Respondent’s character reflects an interest of championing the rights of defendants by fighting for and winning points of law that he believes are right.  While this is an admirable trait, such conduct is problematic when it runs contrary to the client’s interests and the needs of the judicial system to fairly administer justice.  The character of the conduct seems in the nature of “tilting at windmills” rather than zealously protecting the rights and interests of his client.

The court’s findings of fact were forwarded to the Court of Appeals for consideration of the appropriate disciplinary measure.  Usiak filed exceptions to the court’s findings which apparently included an argument that the trial transcript was inaccurate as well as references to confidential Peer Review proceedings.  (From this I conclude that Usiak represented himself and wonder if the result might have been different otherwise.)  Usiak argued to the Court of Appeals that not only was his conduct not sanctionable because he acted to protect his client from what he considered to be an illegal prosecution, but that the proceedings against him also violated his Due Process rights.  In the end, the Court of Appeals concluded that Usiak’s behavior in the courtroom was prejudicial to the administration of justice in violation of Maryland Rule of Professional Conduct 8.4(d). 

In adopting a sanction of sixty days suspension, the Court noted that it did so reluctantly, and that it would in the future consider disbarment for similar conduct.  The Court considered Usiak’s behavior egregious and was troubled by Usiak’s lack of remorse and insistence that he would act in the same way if he found himself in the same circumstance again. 

I am convinced that, while Usiak’s refusal to back down from his position has a lot to do with the decision to suspend him, the Court was especially bothered by the fact that the whole affair grew out of a confrontation with Usiak’s problem judge.  You have to wonder if this would have gone down the same way with another judge, one with whom Usiak didn’t have a “history.”  (I put that in quotations because if you appear in court often enough, you have a history with everybody, but not necessarily “history” history).  And I wonder, too, whether it would have mattered if Usiak had come with hat in hand to this judge’s chambers.  I think it might have, but Usiak, who I don’t know from Adam, doesn’t sound like the type to do that.  And I have to admit, just between us folks, that I admire him for that.  A little bit.  It is at least refreshing to see someone get in trouble for trying too hard to represent his client, given the parade of deadline missers and trust fund account dippers who usually walk this walk. 

I don’t do criminal defense, so I’m interested in hearing from those who do.  I know the guilty plea/deportation issue has become an enormous concern.  What do you think of this result? 

The case is Attorney Grievance Comm’n of MD v.Usiak, No. 22 (Sept. Term, 2009).