A Misbegotten Prosecution Results In Dismissal And Reprimand

The Maryland Court of Appeals decided a disciplinary case against two attorneys that I have closely followed.

In sharp contrast to my usual position, I entirely side with the accused attorneys and believe that they (and their pro bono clients, who vigorously supported them) should never have been subjected to prosecution.

One thing that I learned in over 17 years as a bar prosecutor is that you have the power to make someones life a multi-year nightmare. Thus you are under an obligation to ensure that you prosecute your cases in a fair-minded and proportionate manner.

Here Bar Counsel did not gracefully accept the views of the hearing judge concerning the motives of the complainant and of the case itself

the Commission excepts to the hearing judge’s “non-material findings” in which the hearing judge allegedly “demonstrated animus toward the [Commission] and its counsel at trial.” The Commission asserts that it excepts to such statements because the hearing judge’s statements concerning Bar Counsel “leave[s] 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.’” The Commission also excepts to the “attacks on Mr. Erskine,” who, as the complainant, “acted in the best traditions of the Bar” and “chose to honor his commitment as an attorney to report misconduct.”

We overrule the Commission’s exception. The “findings” to which the Commission directs this Court’s attention appear in the introductory discussion section to the hearing judge’s conclusions of law and in the hearing judge’s conclusions of law. These statements are a part of the hearing judge’s analysis in connection with the conclusions of law, and are not set forth as findings of fact and, as such, have not been summarized above by this Court. Nor have the alleged findings been relied upon by this Court in sustaining or overruling any of the Commission’s exceptions… 

The procedural history of the underlying cases was dense and complex, and the litigation itself was highly contentious. The hearing judge made detailed findings of fact based on the evidence presented to him over the course of sixteen days. The record in this attorney discipline case is voluminous, and the hearing judge more than adequately parsed through it in making the findings of fact. That the hearing judge may not have made certain findings of fact urged by the Commission does not render the findings of fact that were made clearly erroneous.

In both of the cases, Bar Counsel had sought disbarment. One attorney was reprimanded for his inadequate response to the complaint; all charges against the other attorney were dismissed.

The matters are a case study in how the disciplinary process can be abused. This time-consuming and misbegotten case should never have been brought.

The court explained

The road to Maryland’s political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.,,

It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland’s appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel’s lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel’s authority to conduct a “confidential” investigation and refused “to participate in secret attorney grievance proceedings” on First Amendment grounds.

On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a “Petition for Disciplinary or Remedial Action” against Respondents, charging them with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), n1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).

The hearing judge conducted hearings over sixteen days and issued a comprehensive 115-page opinion exonerating both attorneys, questioning the motives of the complainant in filing a bar complaint in the midst of litigation and noting the dearth of proof to sustain the “throw the book at em and hope something sticks” approach of assistant bar counsel.

The heart of the case was a frivolous litigation allegation

In contentious cases involving complex and time-sensitive matters, such as election laws, lawyers may be more likely to file appeals quickly. However, not every lawyer who files an appeal or a petition for a writ of certiorari that is dismissed is charged with violating the MLRPC. Indeed, a lawyer who files appellate papers that are dismissed simply because the lawyer is wrong about the law or the lawyer has, as the hearing judge found, a good faith basis to believe a certain fact that turns out to be incorrect, is generally not subject to discipline under the MLRPC. This is not a case where a lawyer filed an appeal or petition for a writ of certiorari that was blatantly unsupported by the law or facts of the particular case. Therefore, we conclude that the hearing judge was not clearly erroneous when he declined to adopt Bar Counsel’s suggested finding—that the first and second rounds of appellate findings were unsupported by fact or law…

Here, the hearing judge was correct in concluding that there was not clear and convincing evidence that Respondents violated MLRPC 3.1. With respect to the appellate filings, as discussed in detail above, we overrule the Commission’s exceptions to the hearing judge declining to find that various rounds of appellate filings were not supported by fact or law. And, as explained, that an appellate filing may ultimately be unsuccessful, and indeed even dismissed, does not mean that a lawyer violates MLRPC 3.1 for making such a filing. Additionally, we note that there is no indication in the record that this Court or the Court of Special Appeals ever awarded sanctions against Respondents in connection with any of the appellate filings, even though Normandy had asked the Court of Special Appeals to do so.

A significant holding on the nature of the obligation to respond to a bar complaint

Mr. Erskine’s complaint letters to Bar Counsel, to which Bar Counsel requested that Respondents respond, included very broad accusations of misconduct to which it may have been difficult to respond. In the face of these broad accusations, although Ms. Gray informed Bar Counsel that she adopted Mr. Dyer’s response, Ms. Gray also responded by providing her view of the underlying litigation, explaining to Bar Counsel the contentious nature of the case and that, in her opinion, Mr. Erskine’s complaint was an attempt to intimidate her that had begun during the litigation in the circuit court. Although Ms. Gray may not have responded to each of the allegations of misconduct set forth in Mr. Erskine’s complaint and although Bar Counsel apparently takes issue with the substance of Ms. Gray’s response, we are satisfied that the hearing judge’s determination that Ms. Gray did not violate MLRPC 8.1(b) is correct. Given the broad nature of the complaint and that Ms. Gray’s response addressed the substance of the complaint and provided her opinion as to events concerning the underlying litigation, there is not clear and convincing evidence that Ms. Gray knowingly failed to respond to a lawful demand for information from Bar Counsel. Rather, Ms. Gray promptly responded to the substance of the allegations by providing her view of the underlying litigation and why she believed Mr. Erskine had filed such a complaint against her in the first instance. As such, we determine that the hearing judge properly concluded that Ms. Gray did not violate MLRPC 8.1(b).

Another charge goes down in flames

The Commission excepts to the hearing judge’s conclusion that Respondents did not violate MLRPC 8.4(d). The Commission contends that Respondents violated MLRPC 8.4(d) by “burden[ing] the judicial process” and argues that “[v]irtually every step they took caused the courts, their clients and the other parties to expend needless time, resources and energy.” We overrule the exception.

… the hearing judge was correct in concluding that clear and convincing evidence did not establish that Respondents violated MLRPC 8.4(d). As the hearing judge stated, Respondents “provided adequate, but not necessarily perfect, pro bono legal representation that probably would not have otherwise been available to their clients,” and  they “sought to ensure that the First Amendment rights of their clients and nonparty circulators were protected from what they perceived to be unnecessary, improper and overbroad discovery requests.” Under the circumstances of this case, we fail to discern that Respondents’ conduct in the underlying litigation violated MLRPC 8.4(d).

Believe it or not, Bar Counsel had sought disbarment after the square rejection of every charge by the hearing judge.

The video of the oral argument is linked here.

Notably, the courtroom is filled with clients demonstrating support for their accused attorneys.

Have not ever seen that before.

The court politely evaluated the quality of the case by assessing full costs against the Grievance Commission

Although we reprimand Mr. Dyer, as indicated in the mandate, we do not assess the costs against him; rather, we assess the costs against the Commission. We note that Bar Counsel brought numerous charges against Mr. Dyer, and, upon our independent review, we conclude that Dyer has engaged in misconduct involving only one violation of the MLRPC, MLRPC 8.1(b), for which he is hereby reprimanded. Only a fraction of costs of the attorney discipline proceeding can be attributed to the charged violation of MLRPC 8.1(b). We conclude that, under these circumstances, ordering costs against Mr. Dyer is inequitable. Even having Mr. Dyer and the Commission split the costs would not be equitable given that a large portion of the costs are due to alleged violations of the MLRPC that were not sustained and that the Commission failed to prove are supported by clear and convincing evidence. And, as determined above, none of the charged violations against Ms. Gray were proven with clear and convincing evidence. Accordingly, we shall assess the costs against the Commission.

(Mike Frisch)