The Best Traditions Of The Bar

I posted extensive comments on a Maryland disciplinary case involving allegations against two pro bono attorneys decided last Friday.

I wanted here to focus on one point raised in Bar Counsel’s exceptions (on behalf of the Attorney Grievance Commission) to the findings and conclusions of the hearing judge.

There is a troubling aspect of this disciplinary case that does not directly affect the determination of Respondent’s violations of the MLRPC, vel non, but which, nevertheless, requires a response from Petitioner. It is apparent that the hearing judge demonstrated animus toward the Petitioner and its counsel at trial. To the extent that Judge Silkworth’s Findings are false and/or misleading, Petitioner excepts despite the possibility that Respondents’ conduct is only tangentially related to the matters set forth infra. Petitioner takes these exceptions because the hearing judge’s statement in his Findings concerning Petitioner’s counsel can leave the impression that the disciplinary case itself was unfair to Respondents and that specific actions of counsel were “unfounded,” “biased,” “unreasonable,” “frivolous,” “unwarranted,” and “lacking in objectivity.” Findings at 91-92. Such unfounded, overheated rhetoric can undermine the public’s confidence in the disciplinary system and therefore should be addressed.

Overheated rhetoric indeed.

First, Judge Silkworth stated that Petitioner presented to the court and the Respondents “vague, broad and sweeping allegations of wrongdoing.” Findings at 91. Petitioner excepts to this statement as the Petition for Disciplinary or Remedial Action and Petitioner’s Answers to Interrogatories give precise notice to the Respondents (and to the court) of the allegations of wrongdoing. See Petitioner’s Answer to Interrogatories attached hereto as Appendix 8. Any reasonable lawyer can easily make out what was being charged, and to what misconduct they would be called to account.

Perhaps Judge Silkworth got it exactly right. When he sought clarity on the laundry list of allegations throughout the process, he was told it would be in the post-hearing brief. 

And, notwithstanding his “false and/or misleading” findings, he was affirmed on virtually every point by the Court of Appeals.

Second, Judge Silkworth, at Findings at 91-92, describes matters which occurred in court on April 1, 2016 (the date can only be an ironic coincidence.)…Judge Silkworth’s description of the events is at odds with the facts. He stated: “It is clear from the record that Petitioner sought to withhold consent to a necessary extension to conclude the hearing because the court did not act upon the discovery issue raised late in the day as Bar Counsel requested.” The Petitioner’s opposition to the extension requested is a matter of record. 

Ironic coincidences abound.

Similar to Petitioner’s concerns about Judge Silkworth’s unnecessarily provocative statements and claims concerning Petitioner and its counsel, we submit that the Judge Silkworth also unfairly maligned Mr. Erskine, the complaining witness. Although the trial judge’s observations about Mr. Erskine’s representation of his clients in the underlying matter seem to undergird his unwarranted conclusions concerning Mr. Erskine’s motives and biases and that he was “pursuing discovery in violation of the Rules of Professional Conduct,” Findings at 111, there are simply no facts upon which such conclusions can be based. It was Respondents who failed to cooperate in the underlying matter. It was Respondents who filed unnecessary and meritless appeals; and it was Respondents who were sanctioned. There is no basis for Judge Silkworth to determine that Mr. Erskine’s discovery was “unnecessary,” and that the discovery sought “violated the Respondent’s clients” rights.” Petitioner excepts to this conclusion as it is not supported by the evidence. Simply put, the Respondents resorted to means outside the Rules (and the Rules of Professional Conduct) on numerous occasions, and their clients’ rights were jeopardized not by the actions of Mr. Erskine, but by those of the Respondents. 

Petitioner finds the attacks on Mr. Erskine deeply troubling. As the complainant herein, he acted in the best traditions of the Bar. He could have remained silent, never having to deal with the Respondents and their methods, but he chose to honor his commitment as an attorney to report misconduct. He was met not only with cross examination of frankly ridiculous length (spanning 8 trial days) and fatuity, but with the trial judge’s enmity and unwarranted conclusions about his motives. See e.g., Findings at 11 (“Although Mr. Oh and Mr. Erskine continued to discuss the merits of the underlying case, Judge Sweeney held the Motion to Dismiss in abeyance until the Administrative Judge could consider the Motion to Consolidate.”); Findings at 90 (“Frustrated that he was unable to obtain discovery on his terms, Mr. Erskine sought to finally obtain the evidence through the reduced protections afforded by the attorney grievance investigation process”); Findings at 91 (“Respondents’ felt that Petitioner was allowing Mr. Erskine to Violate the very purpose of the rules by using the Attorney Grievance process against them during the litigation. This Court believes that there is some merit to this claim.”); Findings at 106 (“after a review of all of the evidence, the Court does not find Mr. Erskine’s complaints and his viewpoint credible. As an adversary, he was clearly biased”); Findings at 102 (“To the contrary, it was Mr. Erskine who insisted on engaging in unnecessary discovery that suited his clients’ purposes and had the effect of delaying the completion of the litigation. Respondents appropriately, consistently, and correctly opposed extensive and overbroad discovery that not only threatened to delay to [sic] ultimate resolution in time for the election, but also violated Respondents’ clients’ rights. Findings at 111 (“Petitioner has once again taken sides with Mr. Erskine without a fair and objective review of the facts and the evidence. This record contains no credible evidence that Respondents took any action to embarrass, delay or burden anyone, or use any legal method to obtain evidence that they knew would Violate the legal rights of another. To the contrary, they felt strongly that Mr. Erskine was pursuing discovery in violation of this very rule. This Court agrees.”)

 Petitioner fears that Judge Silkworth’s erroneous and inflammatory findings will deter attorneys from reporting misconduct. Even though Mr. Erskine’s complaint was vetted through several stages pursuant to this Court’s disciplinary process, when it reached the trial court he found himself subject to eight days of mostly unnecessary cross-examination, maligned by the trial judge and his motives and actions unfairly questioned. Who will report misconduct if the sacrifice to be made is this great?

Read that last excerpt carefully and note the irony that among the charges in the bar case was a Rule 8.2(a)  violation

An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Fair minds may differ as to whether invoking the disciplinary process in the midst of ongoing litigation in a matter of zero merit is in the “best traditions of the Bar.”

Some might view it as an attempt to intimidate citizens attempting to assert their First Amendment rights with the assistance of counsel.

Judge Ronald Silkworth has served as an Anne Arundel County Circuit Court Judge since 1996 without any suggestion of judicial impropriety save for the passages quoted above.

My study of the record suggests that he discharged his judicial responsibilities here in the highest traditions of the bench.

Note that the day before the court’s opinion was issued, the author of the above passages was named Maryland Bar Counsel. (Mike Frisch)