Reprimand In Pierre Case: Serious Questions Raised Concerning Exercise Of Prosecutorial Judgment

The closely-watched disciplinary case brought against a defeated candidate for judicial office has led to a reprimand by the Maryland Supreme Court

This Attorney Grievance Commission of Maryland proceeding concerns the alleged professional misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It also concerns an overlay of factors that significantly complicates our review of Ms. Pierre’s alleged violations of the Maryland Attorneys’ Rules of Professional Misconduct (“MARPC”). That overlay arises from the circumstances in which the investigation of Ms. Pierre began and the absence of provisions in our rules to guide investigations arising in such circumstances.

The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email. The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an “Urgent Need for Action.”

The email alleged, among other things, that Ms. Pierre’s campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier.

Among the recipients of the campaign email was then-Bar Counsel. In the absence of any rules or procedures governing the investigation of allegations of misconduct arising in the midst of a judicial election, Bar Counsel immediately opened an investigation, informed the sitting judges’ campaign manager of the existence of the investigation, and sought additional information. Soon thereafter, less than two months before the election, Bar Counsel sent Ms. Pierre a letter summarizing many of the allegations leveled by her rivals’ campaign and insisted that Ms. Pierre respond to them in writing, in many cases by explaining and justifying statements made by her or her campaign, within two weeks.

The judicial electoral context in which the MARPC violations at the heart of this matter arose, combined with the timing of the investigation, presents two challenges for our review of those violations. First, any case in which alleged violations arise from speech that is related to an election or that is critical of judges presents First Amendment concerns. This case involves both. Second, the initiation of an investigation into an attorney challenging a slate of sitting judges at a sensitive point in the campaign gives rise to a risk that the investigation will be perceived as an attempt to interfere in the election to favor the sitting judges. In that circumstance, absent a need to proceed expeditiously, the good faith of Bar Counsel—which is something we do not question here—may be insufficient to avoid undermining public confidence in the integrity of the attorney disciplinary process. Both of those challenges play prominently in our review of the charges against Ms. Pierre and our consideration of the appropriate sanction.

Notably

Bar Counsel recommended the sanction of disbarment, while Ms. Pierre recommended imposing no sanction. Given the overlay of circumstances mentioned above, and without intending to diminish the seriousness of the misconduct in which Ms. Pierre engaged, we will issue a reprimand.

Bar Counsel should not insert itself into an ongoing election

any investigation into a candidate for elected office that is undertaken at a sensitive point in the electoral process presents risks that should be avoided or minimized to the extent possible…

The Commission’s and Bar Counsel’s close connection to the Judiciary advise caution in taking actions against a candidate who is challenging sitting judges to avoid the possibility that members of the public may perceive such actions as motivated by a desire to support the sitting judges.

Sanction

We also cannot ignore that Ms. Pierre engaged in serious misconduct. She falsely accused sitting judges of sending people to jail for not speaking English, and she provided a false and misleading response to a question on her New York Bar Application that omitted important information expressly covered by the question. She also engaged in other conduct that, even if it has not resulted in sustained violations of the MARPC, is troublesome. To be clear, similar conduct in different circumstances may result in much different outcomes than we reach today with respect to both violations and sanction. Nothing in this opinion should be viewed as approving of the conduct underlying the charges brought.

The unusual circumstances presented in this matter dictate its outcome.

Senior Judge Battaglia (specially assigned) concurred

I briefly write separately to underscore that the “context” of the case created by Bar Counsel, addressed so eloquently by the majority as well as the dissent, is deeply regretful to me as reflecting poor judgment by an individual in whom the Court invested the authority to investigate and enforce the rules governing our profession. As a former United States Attorney, I believe that those who enforce our norms must do so by exercising judgment that is unassailable.

In the present situation, the initiation of an investigation by Bar Counsel of an attorney running for office during an election, on a “moment’s notice” on the basis of an email and a conversation with an avowed antagonist to Ms. Pierre in the campaign process, does not reflect “good judgment.” My disquietude with the acts of Bar Counsel certainly encompasses all that which has been identified by the majority and discussed with more specificity by the dissent, but I need only emphasize that the decision to pursue an investigation, especially during the course of an election, should have been undertaken with greater deliberateness and prudence.

The rapidity by which Bar Counsel reacted was not only not justified under the circumstances, as the majority notes, but undermined the legitimacy of Bar Counsel’s endeavor. I write separately to underscore that there were other choices in terms of timing and demeanor that should have been exercised by Bar Counsel.

Judge Watts – who questioned former Bar Counsel sharply at the oral argument – would impose no sanction and noted two unrelated matters where prosecutorial judgment was called into question

The unique facts of this case make it readily apparent that the circumstances under which Bar Counsel initiated and pursued the investigation gave rise to—irrespective of Bar Counsel’s motivations—at a minimum, the risk that members of the public could perceive that the investigation was undertaken to influence the election in favor of the sitting judges, i.e., the appearance of a conflict of interest for the Office of Bar Counsel and Bar Counsel. A reasonable member of the public could easily have perceived that, without having received a complaint or even a request for an investigation, Bar Counsel opened an investigation on her own initiative approximately 2 months before an upcoming judicial election and risked potentially intervening in the election in a manner that benefitted the sitting judges. In this case—regardless of any motivations on Bar Counsel’s part—it easily could have been perceived that the Office of Bar Counsel’s resources were deployed in a manner that could have been seen as intervening in a judicial election in a way that helped the sitting judges. This is an extraordinary circumstance that undermines public confidence in any sanction imposed in the case and on its own warrants the dismissal of the case.

Unanswered questions posed by Judge Watts

This case involves an overlay of extraordinary circumstances, see Maj. Slip Op. at 1, however, and too many questions remain unanswered as to Bar Counsel’s investigation and use of the Maryland Rules to permit the imposition of a sanction. These questions include, but are not limited to:
1. What occurred during the less than one hour between Bar Counsel receiving the campaign email and opening the investigation?
2. Why did Bar Counsel not file a complaint against Ms. Pierre pursuant to Maryland Rule 19-711(a)?
3. Why did Bar Counsel fail to notify Ms. Pierre pursuant to Maryland Rule 19- 711(c)(1) that she was under investigation for having made false statements on her New York Bar application?
4. Why did Bar Counsel cite Maryland Rule 19-711(d) and advise Ms. Pierre in the September 7, 2020 letter notifying her of the investigation that she had until September 21, 2020, to respond, that she had only 10 days to request an extension, and that ordinarily no extension would be granted for more than 10 days without good cause?
5. Did the investigation comply with Maryland Rule 19-707’s requirement of confidentiality? Was it reasonably necessary for Bar Counsel to disclose the existence of the investigation to the campaign chairperson or to the sitting judges and did the existence of the investigation become more widely known before the PDRA was filed?
6. Why did Bar Counsel respond to a discovery request from Ms. Pierre by stating that Bar Counsel had “initiated a complaint” when no complaint had been filed? Was Bar Counsel’s response to the request for admissions accurate and fair to opposing counsel?
7. What were the circumstances of Bar Counsel’s involvement in the discovery dispute that necessitated this Court granting Ms. Pierre’s emergency motion to stay and subsequently approving amendments to Maryland Rule 19-726, which rendered the dispute moot?
8. Is MARPC 1.7(a)(2), which provides in relevant part that an attorney shall not represent a client if there is a significant risk that the representation of a client will be materially limited by a personal interest of the attorney, implicated based on the extraordinary circumstances of the investigation.

A footnote to 8

At various points in its opinion, the Majority states “we do not question Bar Counsel’s motives[,]” “we do not mean to suggest that the actions of Bar Counsel in this case were improperly motivated[,]” and that it does not question “the good faith” of Bar Counsel. Maj. Slip. Op. at 46, 10 n.13, 2. Undoubtedly, these comments were made in an effort to ensure public confidence in the integrity of the attorney discipline process and in the imposition of a sanction in this case. My fear is that such statements, though well intended, under the circumstances of this case, may have the exact opposite effect.

Agreed. 

Given the extraordinary circumstances of the case, which exceed those of Jackson and Singh, and which gave rise to the risk that members of the public could potentially conclude that an investigation was undertaken in an attempt to interfere with a judicial election and that this necessitated a recommendation for rulemaking (which I join), I would exercise the Court’s discretion to conclude that no sanction is appropriate. These circumstances, along with numerous unresolved questions about the investigation, serve to undermine confidence in the integrity of any sanction imposed in the case, and sanctioning Ms. Pierre is not necessary to protect the public.

An unprecedented proposal to investigate the conduct of former Bar Counsel

In this case, the better course of action to ensure public confidence in the investigation and sanction imposed would be for the Court to refer the matter to the Attorney Grievance Commission for the appointment of special counsel pursuant to Maryland Rule 19-702(h)(6) to investigate the circumstances of the investigation and issue a report as to its compliance with the Maryland Rules or for the Court under its inherent supervisory authority to appoint special counsel to do the same.

The Jackson and Singh matters were also cases where former Bar Counsel’s position was soundly rejected and questions of fairness and judgment were raised.

There are those who believe that former Bar Counsel’s handling of this case directly led to the announcement of her resignation less than a week after oral argument. 

There are also those who believe that the court has been less than forthcoming as to the actual circumstances of the departure. 

There are those that believe that former Bar Counsel was permitted to backdate the letter of resignation to suggest that the decision to leave came before rather than after the Pierre oral argument.

This decision lends credence to those beliefs.  (Mike Frisch)