More Than An Ordinary Discovery Dispute

A hugely significant discovery battle between an accused attorney and Maryland Bar Counsel led to a Petition for several forms of emergency relief to the Court of Appeals.

From the petition

Without this Court’s immediate intervention, Bar Counsel will have succeeded in perverting its own rules to create an unlevel playing field in which she alone may propound discovery. Although this Court never intended to vest the prosecution with the exclusive right to serve interrogatories, document requests and requests for admissions, Bar Counsel has exploited an unintended consequence of language that she pushed through the Rules Committee to obtain an order which denies the defense the same rights that she enjoys in this very case.

Playing this Court and its committee to her own advantage, Bar Counsel has taken the position that, from now on, “Rule 19-726, as amended, does not permit respondent attorneys to propound written discovery.” MPO at 6 ¶ 6 [B-6] (emphasis added). Dismissing “speculation of what the Rules Committee and Court of Appeals intended” as “irrelevant,” MPO at 7 ¶ 6 [B-7], this zealous prosecutor has misapplied this provision to shield her from any discovery propounded by the defense. Although this Court’s amendment was only intended to preclude the deposition of the Attorney Grievance Commission’s organizational designee, Bar Counsel has even persuaded the lower court to shield her from depositions that were expressly contemplated in its legislative history.

This is not an isolated discovery dispute limited to the case at bar. According to Bar Counsel, the defense has lost its right to conduct such discovery in all pending and future cases. This is far from the “level playing field” this Court intended to promote when presented with an amendment designed to expand defense discovery to include the production of Bar Counsel’s “open file.” Unaware of Bar Counsel’s hidden agenda, The Honorable Alan M. Wilner summarized the change as a benefit to all respondents, believing that the only added restriction on discovery pertained to depositions of the Attorney Grievance Commission’s designee.

If Bar Counsel intended to take the rule so far as to preclude all respondents from propounding standard discovery in all future disciplinary proceedings, she owed it to this Court to disclose her agenda. By failing to do so, Bar Counsel has converted this Court’s rule making process into a venue for hidden agendas and adversarial tactics designed to deprive one’s opponent of fundamental fairness.

These rather explosive contentions were filed on March 11.

Remarkably, the Court of Appeals granted the Petition to Stay two days later and ordered Bar Counsel to file a response next Monday.

The case itself involves allegations of misconduct in statements by a candidate for judicial office reported by the Washington Post as well as a counter suggestion that Bar Counsel should not intervene in an ongoing campaign for judicial office.

Also of note is a recent court notice that an open meeting to discuss this rule will be held on March 30 at 1:00 pm that will be live-streamed and webcast.

As someone once said, should be wild. (Mike Frisch)