| Bar Bulletin |
March,
2003 |
| MSBA News |
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New MSBA Committee
on Lawyer
Discipline Seeks Modifications in Rules
By Janet
Stidman Eveleth
New lawyer
discipline rules that substantially change the process of investigating
grievances filed against lawyers with the Attorney Grievance Commission
have now been effective in Maryland
for close to two years. During this time, the new process has expedited
Maryland’s attorney discipline system, accelerating the investigative
phase and rapidly moving cases through the peer review stage and on to the
Attorney Grievance Commission for final resolution. But the Maryland State
Bar Association believes there could be modifications made to the system
that would enable it to proceed more quickly and improve the screening of
matters that should be dealt with outside of the disciplinary system.
This concern has
prompted MSBA President James P. Nolan to appoint a Special MSBA Committee
on Attorney Discipline Rules which will be chaired by Alvin I. Frederick.
This new committee includes Andrew Graham and Kathleen Meredith, attorneys
who represent a number of lawyers before the Attorney Grievance
Commission, and is rounded out by Glenn Grossman, Deputy Bar Counsel, and
Tyson Bennett, Chair of the MSBA’s Rules of Practice Committee. Nolan has
asked this group to examine these issues and report back to MSBA’s Board
of Governors, ideally by the MSBA’s Annual Meeting in June.
“On behalf of our
members, MSBA is concerned that Maryland’s attorney discipline system be
fair and afford appropriate protections to all practicing lawyers in the
state,” Nolan explains. “Our new Committee will work with the MSBA’s Board
of Governors to create recommendations that, if warranted, will be
forwarded to the Court of Appeals.” Nolan is very interested in the views
of all Association members, and he urges them to contact the Committee
through the MSBA office to share their concerns on the new lawyer
discipline system.
The
New Rules
On July 1, 2001,
the Court of Appeals of Maryland
adopted Title 16 of the Maryland Rules of Civil Procedure, amending
the way attorney disciplinary matters are processed in the state. These
new rules limit the time frame for the investigation and alter the way
complaints of attorney misconduct or incapacity are investigated,
determined, reviewed and remedied.
Essentially, Bar
Counsel, whose power is now increased, is operating under significant time
constraints and must complete an investigation in 90 days once a file is
opened. In addition, Bar Counsel may now require timely responses without
the option of deferral and may seek injunctive relief to preclude an
attorney’s further practice if his or her activities constitute harm to
the public. Contingent on the offense, some attorneys may opt for
conditional diversion.
The most radical
change from the Bar’s perspective is the new Peer Review Panel which uses
a resolution-oriented approach to determine if a compromise between the
lawyers and the former client is possible to resolve the complaint. This
process offers a respondent the best, and last, opportunity to have the
claim screened while the process is still confidential.
Areas of Concern
“There are a number
of positive things about Maryland’s new attorney discipline system,”
emphasizes
Frederick.
“However, there are also several things that might be tweaked a little to
make the system work better.” Frederick has listened to the concerns of
judges and of attorneys with practical experience in this area, and he
believes some things could be changed to further improve the disciplinary
system.
As an example, Frederick
points to the current peer review process which does not permit
credibility determinations to be made. Indeed, Peer Review panels commit
significant resources to the review of matters but are often forced to
recommend public charges because of the inability to assess credibility.
In addition,
decisions of Peer Review Panels may be overruled or even ignored without
the need to state a reason or to provide an explanation by the Attorney
Grievance Commission. Nor does the system provide for a respondent’s
ability to check or protest action by Bar Counsel short of procedures once
the action has become public, at which point important rights may be
irretrievably lost.
The Committee will
consider these and other areas of concern. The goal of this study group is
to suggest disciplinary modifications and take them to the MSBA’s Board of
Governors. Committee members join the Association’s President in seeking
input from MSBA members so that the Committee’s final report may reflect
the feelings of the vast majority of lawyers in the state. It expects to
be hard at work shortly and hopes to issue a final report by June, 2003.
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