Maryland Court Chides Bar Counsel

The Maryland Court of Appeals imposed a 30-day suspension in a case in which the bar complaint had been filed  by opposing counsel in ongoing litigation.

Court of Appeals suspended from practice of law in Maryland for thirty days lawyer who was a member of, and counsel for, limited liability company, and engaged in actions not authorized by the company. Lawyer filed complaint for partition of property against one of company’s members and assigned client’s property rights to trust, identifying himself as trustee, failed to provide complaint and assignment of contract rights to members who owned majority of company, failed to communicate changes to fee agreement and to have contingent fee agreement signed by members who owned majority of company, and failed to move to dismiss case and promptly surrender papers upon termination of his representation.

The case – another of those “throw every rule violation in the book and see what sticks” approach that I have seen recently from Maryland Bar Counsel – led to an 93-page opinion and some educational language directed to the prosecutor

In closing, we take the opportunity to provide guidance concerning the circumstance of a lawyer filing with Bar Counsel a complaint against another lawyer regarding his or her conduct in ongoing litigation in which the complaining lawyer is opposing counsel. Under such circumstances, we believe that it would be advisable for Bar Counsel to await the conclusion of the underlying litigation before determining whether an attorney discipline proceeding is warranted. Following this procedure would avoid any perception that Bar Counsel and the attorney disciplinary process are being used to further the complaining attorney’s interest in ongoing litigation.

Regardless of whether Bar Counsel awaits the disposition of litigation in which a lawyer allegedly engaged in misconduct, Bar Counsel should conduct an investigation that is independent of the existing litigation. In other words, Bar Counsel should independently determine whether any alleged misconduct occurred, rather than relying exclusively on affidavits, and/or other sources of factual allegations, that are derived from the underlying litigation. In litigation, affidavits, although accurate, may be drafted by lawyers for the signature of the affiants, and the memories of people who are involved in litigation may fade or change over time. With certainty, the best practice would be for Bar Counsel, in determining whether to file a petition for disciplinary or remedial action, to conduct an independent investigation and interview individuals who allegedly have evidence of a lawyer’s misconduct, even if the individuals have been involved in prior litigation and given testimony or signed affidavits.

And as to the lack of a meaningful independent investigation

At oral argument, Assistant Bar Counsel was asked to respond to Donnelly’s allegation that Bar Counsel failed to interview Solomons One’s other members during the investigation of Kneeland’s and Cumberland’s complaints. Assistant Bar Counsel responded that she “had no reason to interview” Solomons One’s members before the discovery phase of this attorney discipline proceeding because Solomons One’s members had filed affidavits in the Bankruptcy Case and the Adversary Case. Assistant Bar Counsel also stated that she had obtained e-mails to and from Donnelly, as well as “representations from” Solomons One’s members’ counsel. Assistant Bar Counsel stated that “it would’ve been a waste of time and effort by the Attorney Grievance Commission to repeat what was already done prior to” the filing of Kneeland’s and Cumberland’s complaints. We disagree. 

Oral argument linked here. 

Bar Counsel sought disbarment.

The court found a new hearing was not called for but noted the accused attorney ‘s view of the prosecution

Donnelly contends that Bar Counsel failed to conduct an independent investigation of Kneeland’s and Cumberland’s complaints against him. Donnelly points out that, before the filing of the Petition for Disciplinary or Remedial Action, none of Bar Counsel’s investigators interviewed him, his staff, or any other member of Solomons One. Donnelly asserts that Bar Counsel simply relied on information that had been provided by Kneeland and Cumberland, who lacked personal knowledge of the substance of the allegations against him. Donnelly maintains that Bar Counsel essentially “became the litigation arm for” the Greenbergs during the pending lawsuits that involved Solomons One’s members.

As indicated above, the court took that contention seriously.

And

Donnelly’s allegations concerning Bar Counsel’s discovery violations are troubling, but do not persuade us that a new hearing is warranted. Donnelly challenges his inability to obtain papers that Guenther forwarded to Cumberland’s law firm—i.e., documents that pertained to Guenther’s representation of Erickson-File and McNelis. For the most part, Donnelly does not identify the documents that he sought from Cumberland’s law firm, or why the documents would have been helpful to his case. A document is not discoverable if it is subject to the attorney-client privilege or the work product doctrine. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 407, 414, 718 A.2d 1129, 1134, 1138 (1998). Because Donnelly does not explain the nature of the documents that he sought, it is impossible to determine whether the attorney-client privilege and the work product doctrine would apply to these documents.

 The court rejected the hearing judge’s finding of dishonesty

Under these circumstances, the evidence does not support the hearing judge’s finding that Donnelly engaged in dishonesty when he executed the Assignment of Contract Rights.

Here is the portion of Bar Counsel’s Petition that charges the attorney with dishonesty in response to the complaint

On or about August 7, 2013 and October 25, 2013, Respondent was sent letters notifying him that Bar Counsel had received complaints against him as a result of the conduct described above. In his responses to Bar Counsel’s requests for responses to the complaints, Respondent knowingly made misleading and inconsistent statements.

Not even a hint of which statements were allegedly misleading and inconsistent.

The court also rejected Bar Counsel’s arguments on mitigating and aggravating factors.

The court sustained some of the rule violations but rejected proposed Rule 1.8(i), 1.15, 3.3(a)(1), 8.1 and 8.4(c) violations and, as to an alleged violation of Rule 1.13(a)

Based on the plain language of MLRPC 1.13(a), it is not clear that MLRPC 1.13(a) is an MLRPC that may be violated itself, and there is not clear and convincing evidence to support the conclusion that the subsection applies to the conduct alleged by Bar Counsel in this case.

And, significantly, as to Rule 3.1

The hearing judge’s conclusion that Donnelly violated MLRPC 3.1 by filing the complaint in the Partition Case without authorization is not supported by clear and convincing evidence. Although Donnelly violated MLRPC 1.2(a) in doing so, it does not necessarily follow that Donnelly also violated MLRPC 3.1. There is no evidence that, in the complaint, Donnelly was unable to make good faith argument as to the merits of the Partition Case. 

This is not the first time that Maryland Bar Counsel has taken sides in ongoing litigation and alleged a Rule 3.1 violation that went down in flames.

Perhaps they will be reined in going forward. (Mike Frisch)