to Public Service:
MSBA's Amicus Curiae Brief
Michael Conroy, Jr. & Paul V. Carlin
April 11, 2005, the Court of Appeals of Maryland invited the Maryland State
Bar Association (MSBA) to file an amicus curiae brief in an Attorney
Grievance Commission case against a Maryland attorney and to, specifically,
answer three questions:
Is the Maryland Rule of Professional Conduct Rule 8.2(a)
consistent with the First Amendment to the United States Constitution and
Article 40 of the Maryland Declaration of Rights?
If the answer to Question 1 is yes, how shall the language
of the Rule “know to be false or reckless disregard as to its truth
or falsity” be defined? Specifically, is the applicable standard
of knowledge or reckless disregard a subjective or objective standard?
Is Maryland Rule of Professional Conduct 8.2(a) applicable
to a lawyer’s statement criticizing the judge’s and the master’s
handling of a proceeding in which the lawyer was involved when made in
open court or in papers filed in the same proceeding?
This case arose from a CINA (Child
in Need of Assistance) case in the Circuit Court. In March 2003, in a three-page
statement, the attorney made a motion to recuse the Bench of the Circuit
Court and two Masters. The Judge filed a complaint with the Attorney Grievance
Commission and charges were brought against the lawyer citing Rules 3.3,
8.2 and 8.4. An evidentiary hearing was held in the Circuit Court of an adjacent
county where findings of fact were made as part of the record. The case was
argued in the Court of Appeals in March 2005 and scheduled for reargument
in September 2005.
MSBA Executive Committee and the Board of Governors discussed the importance
of the invitation from the Court. On May 13, the Board voted to file the amicus brief
since, in addition to being helpful to the Court, it may provide a service
to the MSBA membership and might be an opportunity to help define the limits
of permissible speech in the courts and such terms as “reckless disregard
for the truth”.
Time being of the essence, a committee of eight was constituted
and met to immediately address the approach to these issues. Benjamin Rosenberg
and Andrew Baida of the law firm Rosenberg, Martin, Funk, Greenberg, LLP, stepped
forward to take the prime responsibility to draft the brief. MSBA by-laws prohibit
the payment of legal fees, though expenses are allowed. That presented the
need for pro bono work within a very short time frame mandated by the Court.
Committee members Steve Brennan, Paul Smith, Al Frederick, Kathleen Meredith
and Ed Gilliss provided valuable assistance and input.
Mr. Rosenberg and Mr. Baida prepared a well-crafted, precisely-reasoned
brief, citing numerous relevant state, federal and U.S. Supreme Court cases
to answer the Court’s three questions.
In stating that the MSBA and
its members have a compelling and unique interest in the Court’s interpretation
of these disciplinary rules, they provided a concise analysis and demonstrated
exceptional acumen concerning the body of law which has developed around the
First Amendment. The brief argued that the precise issue to be decided is whether
an attorney should be disciplined for expressing harsh opinions about judges
and other judicial officers in a motion to recuse. Serious First Amendment
issues arise when a lawyer might be sanctioned for making statements about
a judge that is either an opinion or based on disclosed facts that have not
been shown to be false.
Mr. Rosenberg and Mr. Baida, on behalf of the MSBA, ended
their amicus brief with these conclusions: The Court should hold that:
1) Rule 8.2(a) is consistent with the First Amendment and Article 40 of the
Maryland Declaration of Rights, but only to the extent that it applies to a
provably false statement of fact concerning the qualifications or integrity
of a judge, adjudicatory officer or public legal officer; (2) an attorney may
be disciplined for such a false statement of fact when the attorney knows the
statement is false or has no good faith basis for believing that it is true;
and (3) Rule 8.2(a) is applicable to such a false statement of fact when made
in open court or in papers filed in the same proceeding.
As ordered by the Court, the amicus brief was timely
filed the first week of August 2005, with argument scheduled for the first
week of September. The MSBA appreciated the rare opportunity offered by the
Court of Appeals of Maryland.
Ben Rosenberg and Andy Baida stroked a home run. They filed
an outstanding brief with the Court on the appointed date. That product should
reduce significantly any unreasonable chill on zealous advocacy both in our
state and nationally. It was that good.
We will not be getting a decision from the Court, as other
collateral matters caused the case to become moot. However, our final correspondence
from Alexander Cummings, Clerk of the Court of Appeals of Maryland, stated,
among other items, the Court’s appreciation for the
“excellent” brief submitted on behalf of the MSBA and that the
Court would keep the brief in the event those questions arise in the future.
Although a final decision was not reached on these important
issues, the outstanding professional efforts of Mr. Rosenberg and Mr. Baida,
done on a pro bono basis, provide a real benefit to our entire membership.
The brief upholds the best rules of law, supports the best practices for our
judges in the courts, avoids a significant chilling effect upon zealous advocacy
and, as a result, provides for better representation for the public.
On behalf of the MSBA, we can only tell you that Ben Rosenberg
and Andy Baida deserve the gratitude and congratulations from all of our 21,000-plus
members for the terrific brief they filed on behalf of the MSBA, which should
ultimately benefit all of our members, our clients, the public, the courts
and the legal system as a whole. We hope that each of you that know Ben or
Andy, and those of you that do not, will join us in thanking them for their
The excellent pro bono work by Ben Rosenberg and Andy Baida
will continue to spur similar efforts by other attorneys and provide exemplary
benefits to the public. The Maryland State Bar Association is rightfully proud
of these two outstanding lawyers.
Mr. Conroy is President and Mr. Carlin Executive
Director of the Maryland State Bar Association.