CORE ISSUE

ISSUE: ATTORNEY DISCIPLINE

SUMMARY: Concerns that the attorney discipline process is too secretive, too slow, too lenient and too restricted to narrow questions led to the formation of a special ABA Commission on Evaluation of Disciplinary Enforcement to review the issue. In 1992 the ABA adopted the Commission's modified report with recommendations that:

1. Disciplinary agencies in the states should be controlled by the judiciary, not by state bar associations;

2. Lawyers should be the funding source for disciplinary bodies;

3. Attorney discipline systems should be broadened to create a "multi-door" approach with mandatory fee arbitration, voluntary arbitration of malpractice claims, mediation, lawyer practice assistance and lawyer substance abuse counseling;

4. Random audits of lawyer trust accounts should be conducted;

5. Universal identification numbers should be assigned; and,

6. Complaints should be disclosed only after formal charges have been brought.

Over the past two decades the legal profession has experienced considerable change. Not only are there more lawyers now, but the size of law firms has grown, there are more attorneys practicing in more than one state, there has been an expansion of the type and scope of attorney services and the addition of ancillary business services, and the development of attorneys forming professional corporations also has occurred. When coupled with greater public exposure through advertising, greater competition between law firms and a growing consumer mistrust of all self-regulatory procedures, it appears that an ongoing review of lawyer discipline is essential in order to maintain public confidence in the legal system.

Recent efforts to change the attorney discipline process in other states have sought to move authority for regulating lawyers from the judicial to the executive or legislative branches of government, and to open up the system to public scrutiny from the filing of the complaint to resolution of the case.  Concerns that Maryland’s approach also may need an overhaul led to a lengthy debate within the legal profession that resulted in the Court of Appeals adopting a streamlined process for swifter review of complaints as well as additional staff.

Maryland's lawyer disciplinary process is handled by the Attorney Grievance Commission which was established by a Court of Appeals rule in 1975, and amended most recently in 2000. The Commission consists of eight attorneys and two non-lawyers appointed by the Court of Appeals for a term of four years. The Commission appoints an attorney to serve as bar counsel, who is the chief executive officer of the disciplinary system. The appointment of bar counsel must be approved by the Court of Appeals, and it is the job of bar counsel and the Attorney Grievance Commission staff of investigate all matters involving possible misconduct, to prosecute disciplinary proceedings and to investigate petitions for reinstatement. A disciplinary fund paid by practicing attorneys covers the expenses of the Commission.

Under the provisions of Title 16 of the Maryland Rules of Civil Procedure, as of July 1, 2001, the new procedures will establish a time period of 90 days (with 60-day extensions for good cause) for Bar Counsel to investigate complaints. For those cases that are not discussed or resolved through warnings, diversion, referral, reprimand or court action, a three-member Peer Review Panel will be convened to handle the complaint confidentially. After the Peer Review Panel completes its work, all unresolved cases will become public.

Legislation threatening the Maryland Attorney Grievance Commission and judicial control of the Commission by transferring its duties to the Office of the Attorney General was filed and defeated in 1993.

In 1994 bills were introduced to grant limited statutory immunity to citizens who file complaints with the Attorney Grievance Commission. These proposals arose out of a circuit court decision favoring a lawyer who sued former clients for filing a complaint with the Attorney Grievance Commission. The MSBA opposed these measures because they would weaken the absolute immunity of citizens that is firmly established in case law. All of the bills were rejected.

In 1996, legislation to change the composition of the Attorney Grievance Commission to include a majority of non-lawyers was soundly defeated in the Senate Judicial Proceedings Committee. No legislation affecting the Attorney Grievance Commission has been filed for the past four sessions, although media attention to the lawyer discipline process has increased in recent years.

Other possible areas particularly susceptible to legislative intrusion include opening up the complaint process to public scrutiny, establishing alternative courses of action in cases where there is no action by the Commission, and a requirement that lawyer trust accounts be subject to random audits by non-judicial agencies.  In the future, however, there may be fewer bills in the General Assembly that concern attorney discipline because the adoption of the new lawyer disciplinary rules by the Court of Appeals has demonstrated the willingness of courts to maintain close oversight of the profession.

MSBA 2002 POSITION: Oppose any proposal to take regulation of the attorney discipline process out of the judicial branch. On the issue of public disclosure of complaints against lawyers, any change in current rules should be done by the judicial branch, and not by legislation.

5 Year Summary of Disciplinary Action* 

*Source: The Attorney Grievance Commission of Maryland, 25th Annual Report

SAMPLE LEGISLATION:
Senate Bill 466, General Assembly of Maryland, 1994
Senate Bill 76 , General Assembly of Maryland, 1996

Return to 2002 Final State Legislative Program Table of Contents

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