Kentucky Bar Ass'n v. Maze

— 892 — OPINION AND ORDER The Kentucky Bar Association (KBA) charges Donald “Champ” Maze with several counts of misconduct in three separate cases, KBA File 14681, File 15241 and File 15236, all of which arise from Maze’s actions prior and subsequent to the May 6, 2006 election for Bath County Attorney. The Trial Commissioner and the Office of Bar Counsel recommend permanent disbarment, whereas Maze requests and the KBA Board of Governors recommend a five-year suspension. Having reviewed the entire record, this Court finds permanent disbarment is the appropriate disciplinary sanction for Maze’s misconduct. Maze, whose KBA number is 82100 and whose last known bar roster address is 115 Court Street, P.O. Box 580, Owingsville, Kentucky 40360, was admitted to the practice of law in 1987. KBA File 14681 After graduating from law school in 1987, Maze returned home and opened a solo practice in Owingsville, Kentucky. In 1990, Maze was elected as the Bath County Attorney and served three consecutive four-year terms until he was defeated in 2002. In 2006, Maze again ran for Bath County Attorney. The primary election that year, which was set for May 6, was rife with corruption and vote buying. According to the vote buying scheme, voting “assistors” would accompany voters into the voting booth, pay them for their vote, and then direct them to cast their ballot for particular candidates. The presence of the “assistors” was justified by the voter’s alleged blindness, illiteracy or inability to operate the voting machine. Maze or others associated with him tried to persuade the Kentucky State Police to intervene but the practice continued. Eventually, Maze paid people involved in the scheme to add his name to the list of candidates for whom people were paid and directed to vote. Maze won the election and took office as Bath County Attorney on January 1, 2007. The authorities investigated the extensive corruption surrounding the 2006 election and on September 8, 2006 Maze testified before a federal grand jury about his involvement. While under oath, Maze testified as follows: Q: Did you give any cash, during the election process, to any of those people who were indicted? A: No. Q: You didn’t give any cash to Norman Crouch? A: No. Q: You didn’t give any cash to Tammy Manly? A: No. Q: You didn’t give any cash to David Hunt? A: No. — 893 — Q: We have heard testimony that some of these individuals, testimony from a number of people, when voting, the paid assistors as we call them, the ones who were assisting people to vote and then paying them, were voting your name along with several others as sort of a slate. Do you have any reason to know why they would be doing that? Or any explanation for the Grand Jury? A: No, I don’t. In fact, Maze had paid people, including Manly, to add his name to the slate of candidates. Maze was soon thereafter indicted in the United States District Court for the Eastern District of Kentucky on five counts of criminal activity, including vote buying and perjury. Maze initially pled not guilty to all charges and his case proceeded to trial. Before its conclusion,' however, Maze and the prosecution reached a plea agreement. On February 13, 2007, Maze pled guilty (1) to paying Tammy Manly $100.00, Annette Mitchell $100.00, David Hunt $180.00, Norman Crouch over $200.00 and paying Anthony White for votes and (2) to lying under oath to a federal grand jury. The other three charges pending against Maze were dismissed. On July 9, 2007, Maze was sentenced to twenty-one months in prison on each count, to run concurrently, followed by two years of supervised release and 200 hours of community service. He was fined $50,000.00 and assessed a criminal monetary penalty of $200.00. Maze also resigned his position as Bath County Attorney. He was released from prison on November 14, 2008 and returned home to Owingsville. Maze has paid both the fine and penalty and has completed both his supervised release and the 200 hours of community service. Since his release from prison, Maze has obtained employment selling cars and also assists his mother with various tasks. In connection with these matters, the KBA charged Maze with violating SCR 3.130(8.8)(b) (committing criminal act that reflects adversely on honesty, trustworthiness or fitness as lawyer) and SCR 3.130(8.3)(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). In both his Answer and in the Joint Stipulations submitted prior to the Trial Commissioner’s hearing, Maze' admitted he violated SCR 3.130(8.3)(b) and SCR 3.130(8.3)(c). KBA File 15241 At the beginning of his federal trial on the aforementioned charges, Maze copied and distributed to individuals not involved in his trial the list of the fifty to sixty people selected as prospective jurors in his trial. Among the several individuals who got a copy of this list were Paul Goodpaster, the Property Valuation Administrator for Bath County, and Charles Hart, a businessman in Bath County. Maze also later distributed the list of fourteen jurors (twelve jurors and two alternates) who were selected and empanelled to serve as his jury. Maze testified that he copied this list and made it available for people to pick up at his office. After trial had recessed one day, Maze met with Goodpaster and Hart in Goodpaster’s office, at which time Hart called Cliff Davis, who was the work supervisor of juror Audie Banks. Immediately after Maze pled guilty to buying votes and lying to a grand jury, he was questioned by the federal prosecutor about his involvement in the jury tampering, which was then under investigation. Maze testified about the phone call made to Cliff Davis as follows: Q: Well, who was going to do it and what were they going to do? A: I guess Chuck was going to check on the guy and probably— Q: Probably what? — 894 — A: See if he could help, I guess. Q: Well, that’s kind of code for something, see, help you do what? A: Well, I don’t know, I mean — let me lead up to it, okay? Mr. Banks worked at a place called Kirk National Lease. It was discussed, we think, that this guy works at Kirk National Lease, this Cliff — where this Cliff is the supervisor, all right? Chuck made the phone call, asked “Does Audie Banks work there?” This guy said, ‘Yeah.” I didn’t hear him on the other end, but he said, “Well, well — I’ll get with you one day this week.” Q: I understand what was said. A: [T]he idea was to see if this Banks guy did work there, who he was and possibly get some kind of favorable word to him some way, that — about me. Q: Get some favorable word to him about you. A: Right. Four years later, when testifying before the Trial Commissioner in this disciplinary matter, Maze told a different story. He now claims he does not know why he testified the way he did in 2007 and that his sworn testimony to the federal prosecutor contained merely his guesses about what he thought might be going on. Maze now claims there was no understanding between himself, Goodpaster and Hart that Hart would call Cliff Davis about Audie Banks; that he did not know what Hart was going to do before Hart placed the call to Cliff Davis; and, in fact, that he tried to dissuade Hart from contacting anyone. Maze was never criminally charged in connection with these matters. During Maze’s criminal trial in federal court, presiding Judge Joseph Hood became aware that the jury might have been tampered with and ordered the FBI to investigate any improper conduct regarding the jury. When court recessed briefly that same day, Maze called his office and instructed his secretary to get back all of the jury information they had distributed and to dispose of it. Maze also instructed his office to call Goodpaster and inform him the FBI was investigating jury tampering. On April 13, 2009, the KBA charged Maze with violating SCR 3.130(3.4)(a) (unlawfully obstructing another party’s access to evidence by destroying a document having potential evidentiary value); SCR 3.130(5.3)(b) (make reasonable efforts to ensure the conduct of the non-lawyer over whom the lawyer has supervisory power is compatible with the professional obligations of the lawyer); SCR 3.130(3.5)(a) (influencing a judge, juror, prospective juror or other official by means prohibited by law); SCR 3.130(8.3)(b) (commit criminal act that reflects adversely on honesty, trustworthiness or fitness as lawyer); and SCR 3.130(8.3)(e) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Maze has denied violating the Rules of Professional Conduct in this case. KBA File 15236 On February 14, 2007, after pleading guilty to vote buying and perjury, Maze was suspended from the practice of law by operation of Supreme Court Rule (SCR) 3.166(1), which provides for automatic suspension after conviction of a felony.1 Maze received a letter from the Office of Bar Counsel notifying him of his suspension on March 6, 2007. Prior to events surrounding the 2006 primary election, Maze had — 895 — been representing Kenneth Lyons in Lyons’s divorce proceedings. Lyons and his wife were able to reach an agreed settlement and Mrs. Lyons’s counsel sent Maze an Agreed Order reflecting the negotiated settlement. Six days after Maze received the letter from the Office of Bar Counsel notifying him that he was suspended, he contacted Mrs. Lyons’s counsel and requested she re-send the Agreed Order. Maze then signed the Agreed Order as Lyons’s counsel and sent it back to opposing counsel, who filed the Order with the court. The KBA issued a two-count charge in this matter, claiming Maze violated SCR 8.130(3.4)(c) (knowingly disobeying an obligation under the rules of a tribunal) and SCR 3.130(5.5)(a) (practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction). Maze has admitted, in both his Answer and in the Joint Stipulations submitted prior to the Trial Commissioner’s hearing, that he violated these rules as charged. Trial Commissioner’s Findings and Recommendation The hearing before the Trial Commissioner was held on March 15 and 16, 2011. After hearing testimony from several witnesses, including lengthy testimony from Maze himself, the Trial Commissioner recommended Maze be permanently disbarred from the practice of law. In File 14681, in which Maze was charged with violating SCR 3.130(8.3)(b) and (e) in connection with his vote buying and perjury, the Trial Commissioner correctly found Maze’s guilty plea conclusively proves his violation of SCR 3.130(8.3)(b) and (c). Kentucky Bar Association v. Rice, 229 S.W.3d 903, 904 (Ky.2007) (“Indeed, the criminal conviction itself forecloses further inquiry into whether he committed the alleged acts of misconduct.”). The Trial Commissioner further found Maze failed to prove any mitigating factors and was concerned by the fact that Maze had served as the County Attorney, a trusted, respected and influential public position, for twelve years and had again been seeking that office when these offenses occurred. “Vote-buying and perjury committed by anyone, especially a member of the legal profession and one who is a public official does immeasurable damage to the public and specifically the judicial system.” Commissioner’s Report, p. 7. The Trial Commissioner was also particularly troubled by the fact that Maze, though admitting his guilt, repeatedly attempted to diminish the seriousness of his conduct rather than accepting full responsibility for his actions. Additionally, the Trial Commissioner found Maze’s motive for buying votes and committing perjury was “not only dishonest, but also selfishly motivated to gain the financial benefits of becoming County Attorney and gain the power and influence inherent in that public office.” Commissioner’s Report, p. 6-7. Finally, the Trial Commissioner noted it was impossible for Maze to make restitution to those who “cast their ballot on May 6th in good faith ... or to those who voted for [Maze] with the mistaken belief he was honest, had integrity, and had knowledge of the law to competently and faithfully discharge the duties of County Attorney if elected.” Id. at 7. Given the admitted rule violations, the nature of Maze’s crimes and these aggravating factors, the Trial Commissioner recommended Maze be permanently disbarred. In KBA File 15241, concerning Maze’s involvement with the jury tampering, the Trial Commissioner found Maze violated all the rules charged by directing his secretary to destroy the juror information — 896 — sheets, which were being sought by the FBI, and by participating in the meeting with Hart and Goodpaster, in which Hart called juror Audie Banks's supervisor with the intent to improperly influence Banks. Having the benefit of observing Maze over two days of the hearing, including during Maze’s lengthy-testimony, the Trial Commissioner deemed Maze’s claim that he had been unaware of Hart’s plan to call Cliff Davis' and his claim that he had opposed Hart’s attempt to influence Davis to be “not credible.” The Trial Commissioner was again troubled by Maze’s refusal to fully admit his wrongdoing. As with vote-buying, Maze repeatedly tried to rationalize his misconduct or minimize his culpability. The Trial Commissioner found Maze’s conduct “adversely reflects on his honesty, trustworthiness and fitness as a lawyer ... [his] commission of these serious crimes violates the Rules of Professional Conduct and shows a pattern of dishonesty and disregard for the judicial system and the legal profession” and accordingly recommended permanent disbarment. Commissioner’s Report, p. 11,12. In KBA File 15236, involving Maze continuing to practice despite his suspension, the Trial Commissioner noted Maze was guilty by his own admission. While the violations in this file alone would not warrant permanent disbarment, the Trial Commissioner held, when this conduct was viewed in light of Maze’s other 'criminal acts and violations of the Rules of Professional Conduct, permanent disbarment was the appropriate penalty. The Trial Commissioner was concerned that, yet again, Maze refused to take full responsibility for his actions. The Trial Commissioner ultimately concluded Maze’s plea of guilty to two felonies and the charges of misconduct clearly demonstrate a pattern of [Maze’s] total disregard for the laws of the United States, the laws of the Commonwealth of Kentucky, his disrespect for the legal profession, and his reckless disregard for the truth ... [Maze’s] repeated and unrepentant criminal acts against the public are like branches of immeasurable length on the tree of corruption ... they spread everywhere. Commissioner’s Report p. 14 and 15. As such, the Trial Commissioner recommended Maze be permanently disbarred from the practice of law. Board of Governors’s Findings and Recommendation Maze appealed the Trial Commissioner’s Report'and the KBA Board of Governors (the Board) heard oral arguments on January 20, 2012. The Board agreed with the Trial Commissioner that Maze is guilty of all charges of misconduct in File 14681 (concerning vote-buying and perjury) and in File 15236 (representing Lyons while suspended). In File 15241 (jury tampering), the Board, by a vote of eleven to five, found Maze guilty of violating both SCR 3.130(3.4)(a) (unlawfully obstructing another party’s access to evidence by destroying a document having potential evidentiary value) and SCR 3.130(5.3)(b) (make reasonable efforts to ensure the conduct of the non-lawyer over whom the lawyer has supervisory power is compatible with the professional obligations of the lawyer); guilty, by a vote of fourteen to two, of violating SCR 3.130(3.5)(a) (influencing a judge, juror, prospective juror or other official by means prohibited by law); and not guilty, by a vote of sixteen to zero, of violating SCR 3.130(8.3)(b) (commit criminal act that reflects adversely on honesty, trustworthiness or fitness as lawyer) and SCR 3.130(8.3)(c) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Ultimately, twelve members of the Board voted to suspend Maze for — 897 — five years and four members voted to permanently disbar Maze. In rejecting the Trial Commissioner’s recommendation to permanently disbar Maze, the Board accorded weight to (1) the fact that Maze’s actions did not involve any misconduct with a client or third party’s money; (2) the fact that Maze pled guilty and agreed to resign from office after only forty-five days of service; and (3) Court of Appeals Judge Sara Combs’s testimony that reinstated and rehabilitated attorneys can have a positive impact on their community. The Board also relied on Hubbard v. Kentucky Bar Association, 66 S.W.Sd 684 (Ky.2001), a case in which an attorney who had voluntarily resigned under terms of permanent disbarment after being convicted of three felonies sought and was granted reinstatement. Given these mitigating factors, the Board recommended Maze be suspended for five years. Proceedings Before This Court This case came before the Court pursuant to SCR 3.370(7) and (8), which permits Bar Counsel to request the Court’s review of the Board’s decision. The findings of fact by the Trial Commissioner and the Board are advisory only. Kentucky Bar Association v. Steiner, 157 S.W.3d 209 (Ky.2005). The Court makes an independent review of the record and findings of fact and may “enter such orders or opinion as it deems appropriate on the entire record.” SCR 3.370(7) and (8). Upon review of the entire record, the Rules of Professional Conduct and relevant case law, this Court finds permanent disbarment is the appropriate sanction for Maze’s misconduct. A significant factor in this Court’s decision, is the nature and severity of Maze’s misconduct. Maze not only engaged in buying votes to get himself elected to the position of Bath County Attorney, but he then knowingly and intentionally lied under oath to a federal grand jury and later was involved with jury tampering and apparent interference with the ensuing federal investigation. Compounding Maze’s misconduct is the fact that he was either running for public office or serving as the County Attorney when he committed these bad acts. As the Trial Commissioner noted, the position of County Attorney is one of power and influence that requires the trust and respect of the community,- and Maze abused that good faith when he bought votes, committed perjury and tampered with a jury. Any layperson should know better, and so much more should a lawyer with over twenty years of experience, twelve of which included prosecuting criminals as the County Attorney. The Court is also especially troubled by the fact that Maze never fully accepts sole responsibility for his actions and never expresses legitimate remorse for his misconduct. As the Trial Commissioner noted and as the transcript of evidence bears out, any time Maze would admit he had been guilty of some misconduct he would immediately attempt to mitigate or minimize his culpability. In regards to the vote buying, Maze admitted he had paid pérsons involved in the vote buying scheme but then explained that he had •first contacted the authorities about stopping the corruption and nothing was being done, that the vote buying and corruption was rife and wide-spread and that he knew he was losing votes to his opponent and did not know what else to do. Maze also insisted he just got dragged into the whole vote buying business, that he did not consider it vote buying because he never paid the voters themselves and thát he was not really thinking about buying votes when he paid the money but was just trying to get those involved in the scheme to stop badgering him for money. At one point, Maze — 898 — attempted to dismiss his behavior by saying he may not have actually received any votes as a result of his payments. At another point Maze made yet more excuses, saying yes, he did plead guilty, but the federal authorities involved in investigating and prosecuting the vote buying scheme pushed people to say a lot of things “to make things the way they wanted to make [them].” Similarly, with the jury tampering, Maze claimed ignorance of the wrongfulness of distributing information about an empan-elled jury to those not involved in the trial, stated people only wanted to help him out like they would any friend, that he did not know the FBI was seeking the jury information sheets, and that he only collected and destroyed those sheets to keep his friends from getting into any trouble. In regards to practicing law while his license was suspended, Maze claimed he did not think signing an order filed with the court constituted “practicing law” and he intimated the court or opposing counsel had some obligation to object to him signing the Agreed Order. Finally, Maze never expresses any sincere remorse for his misconduct. Maze’s continued refusal to accept, without justification, full responsibility for his actions, which include the commission of several felonies, calls into question his moral fitness to continue to practice law. In its recommendation, the KBA credited Maze with pleading guilty and with resigning his position as Bath County Attorney. The Court finds, however, that neither of these factors weighs in Maze’s favor. Maze did plead guilty to his crimes but only after he was made aware of the severity and extent of the jury tampering investigation and further that, in exchange for his guilty plea, three of the five charges pending against him would be dismissed. Though Maze’s resignation as County Attorney was a part of his plea agreement, it was nonetheless inevitable. Maze was immediately suspended from practice after pleading guilty and therefore could not have continued to serve as County Attorney, regardless of whether doing so was a condition of his guilty plea. Finally, the case relied on by the Board, Hubbard, 66 S.W.3d 684, is inapposite. That case involves the question of whether an attorney, who voluntarily resigned under terms of disbarment and therefore was eligible for future reinstatement, should in fact be reinstated to the practice of law. Hubbard provides no guidance on whether Maze should be disbarred for his misconduct. There is, however, ease law on point supporting permanent disbarment of Maze. The Board based its decision to only suspend Maze for five years in part on the fact that there was no financial aspect to Maze’s misconduct. The Court is aware that a particularly severe stance is taken against financial misconduct by attorneys, Rice, 229 S.W.3d at 905, but this Court can and does disbar attorneys for non-financial misconduct. See Kentucky Bar Association v. Getter, 211 S.W.3d 58 (Ky.2007) (disbarred for failure to properly represent clients); Kentucky Bar Association v. Vanmeter, 176 S.W.3d 692 (Ky.2005) (disbarred for failure to properly represent clients and conviction of non-financial crimes); Kentucky Bar Association v. Belker, 997 S.W.2d 470 (Ky.1999) (disbarred for sexual misconduct with clients); Kentucky Bar Association v. Thomas, 999 S.W.2d 712 (Ky.1999) (disbarred upon conviction of two non-financial felonies). The fact that an attorney’s misconduct does not involve financial malfeasance is not a bar to imposition of permanent disbarment. Particularly instructive to this case is Kentucky Bar Association v. Carmichael, 244 S.W.3d 111 (Ky.2008), in which this — 899 — Court permanently disbarred an attorney who was convicted of attempted extortion after the attorney, who was at the time serving as a Commonwealth’s Attorney, attempted to extort $50,000.00 to $100,000.00 from a man who had been recently arrested in exchange for a promise not to prosecute. Like Maze, the attorney in Carmichael did not have a disciplinary history, had a good reputation and had success in re-integrating himself in his community since his release from prison. Despite these mitigating factors, the Court was troubled by the fact that, also like Maze, the attorney in Carmichael held a position of influence and authority at the time of his misconduct. “The aggravating factor this Court does find troubling, however, is Carmichael’s position of authority and influence as the elected Commonwealth’s Attorney for the 28th judicial district. In the past, this Court has disbarred other public officials for abusing their office’s power for their own selfish gains.” Id. at 115 (referencing King v. Kentucky Bar Association, 162 S.W.3d 462 (Ky.2005) and Kentucky Bar Association v. Layton, 97 S.W.3d 452 (Ky.2003)). Similarly helpful is the case office, 229 S.W.3d 903, in which the Court permanently disbarred an attorney after his conviction of two counts of false statement of identity, based on credit card identity theft perpetrated by the attorney and his girlfriend. The Trial Commissioner in Rice recommended a five-year suspension and, after accepting review, the Board narrowly agreed with the Trial Commissioner’s recommendation (eleven members voted for a five year suspension while nine members voted for permanent disbarment). The Court in Rice filed a notice of review and ultimately determined permanent disbarment was the appropriate sanction. In its opinion, the Court in Rice listed the mitigating factors it considered, several of which are similar to those in Maze’s case. Like Maze, Rice made an effort to maintain employment since his suspension; he complied with the terms of his probation, which included community service and restitution payments; he had no prior criminal or disciplinary record; and he had engaged in no further criminal activity. Unlike Maze, Rice had expressed remorse for his wrongful conduct. Offsetting these mitigating factors was an aggravating factor the Rice Court found “most troubling,” namely, Rice did not see any connection between his criminal conduct and his practice of law. Further concerning to the Court was Rice’s initial denial of the charges, his reluctance to take responsibility for the crimes and the diagnosis of a personality disorder for which Rice had not sought treatment. With the exception of the personality disorder, these aggravating factors that the Court found compelling in Rice are similar to Maze’s refusal to take full responsibility or express sincere remorse for his misconduct. As the Trial Commissioner found in this case, the Court in Rice found Rice merely “paid lip service to taking full responsibility for the crimes, throughout his questioning at the hearing he repeatedly tried to shift blame onto his then girlfriend.” Id. at 905. Based on all of these cases/permanent disbarment is an appropriate sanction for Maze’s misconduct. The Court is aware of and has taken into consideration the mitigating factors in Maze’s case. Prior to the instant case, Maze had not received any disciplinary sanctions in twenty years of practice and had no previous criminal convictions. He has been criminally punished for his illegal conduct and served his sentence without incident. He has also complied with the disciplinary authority throughout the disciplinary process. Several of Maze’s friends and acquaintances testified to his good character and, present circumstances ex — 900 — cepted, his fitness as a lawyer. These mitigating factors do not, however, outweigh the aspects of this case that justify permanent disbarment, including the nature and severity of Maze’s crimes and misconduct, the fact that he was either running for or serving in public office when he committed these bad acts, the abuse of public trust and confidence and the fact that, even at this late date, Maze still refuses to fully accept responsibility or express genuine remorse for his actions. Therefore, it is hereby ORDERED: 1. Donald A. Maze is permanently disbarred from the practice of law in the Commonwealth of Kentucky; and 2. Pursuant to SCR 3.450, Donald A. Maze is directed to pay all costs associated with these disciplinary proceedings in the amount of $2,824.65. ABRAMSON, NOBLE, and VENTERS, JJ., concur. SCOTT, J., dissents by separate opinion in which KELLER, J., joins. CUNNINGHAM, J., not sitting. Footnotes [1] Suspension under this rule remains in effect until dissolved or superseded by order of the Court. Maze’s suspension has not been lifted since it was imposed on February 14, 2007.