Melvin Hirshman was a frugal man during his tenure as Bar Counsel of the Maryland Attorney Grievance Commission. When Mr. Hirshman retired in 2010 the Commission had accumulated a surplus of nearly $8 million. Now, in an odd twist, his fiscal prudence has led to a debate about the future of professionalism in Maryland law.
The funds came from Maryland lawyers. Each year every lawyer admitted to practice in Maryland makes a payment to the Attorney Grievance Commission. Part goes to the Commission, and part goes to the Client Protection Fund. The Commission portion is used to pay for the regulation of Maryland Lawyers. The Client Protection Fund compensates victims of lawyers’ defalcations. Over the years Maryland lawyers paid in more than was spent in administering the Commission and the Fund. By the end of 2011 the surplus had grown to almost $10 million.
So, under the category of no good deed goes unpunished, legislators in search of revenue proposed taking the surplus and putting it in the State’s General Fund. Appropriate objections were raised, with the Maryland Judiciary leading the way, and the legislation was eventually defeated.
The Court of Appeals, perhaps sensing the continued vulnerability of the surplus, decided to put it to use. In an Administrative Order issued in late 2011, the Court transferred approximately $5 million to the Client Protection Fund, which was facing a potential shortfall. In the same Order it transferred $300,000 to the Professionalism Center, then known as the Professionalism Commission. By doing so it recognized professionalism as part of its regulation of the practice of law. It reinforced that recognition in March of this year when it adopted Rule 16-407, which created the Maryland Professionalism Center. The Rule also provided continuing funding for the Center by designating part of the assessment each lawyer pays to the Client Protection Fund to the Professionalism Center. That was where the controversy started.
When Rule 16-407 was adopted, two of the judges on the Court of Appeals voted against it. One of them wrote a dissent, contending that at least part of the funding provision was unconstitutional. Several articles appeared in local media, quoting members of the Bar making the same argument, and characterizing the funding mechanism as an improper taxation of lawyers. When it came time to recodify the Rule, the Court, with a new Chief Judge and a new Associate Judge, deferred. Although the postponement did not affect the Center’s funding, it did give the Bar an opportunity to be heard.
Of course everyone is against new taxes, if that’s what the funding is. But we all also agree, hopefully, that the practice of law is still a profession. And implicit in that agreement is the shared belief that we need to promote professionalism.
The Professionalism Center was created to advance values that all lawyers should espouse. Those values were not always part of the practice of law, at least in the litigation arena. Not too many years ago, depositions on occasion resembled contact sport. Endless speaking objections and coarse personal exchanges between counsel were not infrequent. Who doesn’t remember the videotaped exchange (unfortunately still viewable on YouTube) between famed Texas trial lawyer, Joe Jamail, and opposing counsel, each calling the other schoolyard names, and worse. But that era in Maryland is, for the most part, over; and it’s over because the Bar and the Bench decided it was unacceptable. The Professionalism Center helps us keep that decision intact, by educating new admittees and engaging established lawyers.
Maybe the Center’s charge needs to be clarified; maybe creative minds have to find new ways to sustain it; and maybe, if the lawyers do have to pay for it, they should have a bigger voice in its direction. But, figuratively speaking, let’s not throw out the baby with the bathwater. Let’s keep professionalism as an integral part of the practice of law in Maryland.