Attorney Disciplinary Proceedings for the State of Maryland
On January 11, 2022, the MSBA hosted a continuing education program featuring Hilary Gerzhoy, Esquire, and John Grimm, Esquire, from the law firm of Harris, Wiltshire & Grannis, LLP to discuss attorney disciplinary proceedings in Maryland and the District of Maryland. Ms. Gerzhoy is a partner at the firm. Mr. Grimm is an experienced trial and appellate litigator. They frequently represent employers and lawyers in disciplinary matters. This article showcases their presentation on the disciplinary process in state courts in Maryland and Step One and Two of the Disciplinary Proceedings. Steps Three and Four will be featured next week. The next two weeks the MSBA will feature an article showcasing Ms. Gerzhoy and Mr. Grimm’s presentation on the disciplinary process in the District of Maryland along with available sanctions and reciprocal issues that were discussed.
General Overview of the Disciplinary Process
The goal of any attorney disciplinary system is to protect not only the public, but also the integrity of the legal system. Members of the Maryland Bar are expected to uphold the Maryland Attorney’s Rules of Professional Conduct (the Rules). Failure to comply with any obligation imposed by one of the Rules is a basis for invoking the disciplinary process. Essentially any conduct that would constitute professional misconduct or demonstrate incapacity to practice law is subject to discipline. MD Rule 19-711(a).
Any lawyer admitted in Maryland is subject to the Court of Appeals disciplinary process and authority regardless of the geographical location of where the conduct takes place. If the conduct takes place in a jurisdiction other than Maryland, the rules of the other state apply and not the Rules. Ms. Gerzhoy explained, this “concept represents the notion that attorneys should be held to the standard and rules of court that one practices, but as a lawyer barred in Maryland you are still subject to Maryland’s disciplinary authority.” It is common to see two separate, independent investigations if a lawyer authorized to practice law in Maryland commits a misconduct violation in another jurisdiction.
Bar Counsel who are appointed by the Attorney Grievance Commission will investigate and prosecute allegations of professional misconduct. Bar Counsel are also considered to be “disciplinary authorities” under the Rules. In the initial stages of a bar complaint, all records and the existence of a complaint are confidential until a petition for disciplinary action or remedial action is filed.
The Attorney Grievance Commission operates to approve the dismissal of a complaint or statement of charges or terminate a complaint with or without a warning, conditional diversion agreement, reprimand, or filing of petition for disciplinary or remedial action. Md. Rule 19-702(h)(9). Then a Peer Review Panel makes a recommendation as to what discipline should be imposed. Md. Rule 19-720
If a petition for disciplinary or remedial action is filed and not dismissed, a circuit court judge is appointed to hold a disciplinary hearing. Md. Rule 19-722. Finally, the Court of Appeals reviews and makes the final determination. You may watch the panelists discuss the overview of the disciplinary process here.
First Step in a Disciplinary Proceeding
Bar Counsel can file a complaint on their own based upon information from any source. Md. Rule 19-711(a). The Rules frequently allow Bar Counsel to initiate an investigation or disciplinary action on its own or when a complaint is filed by a third party. Unless Bar Counsel determines there is no basis for misconduct, Bar Counsel shall docket a complaint and conduct investigation. Md. Rule 19-711(b). Once the formal complaint is filed, Bar Counsel then alerts the attorney who has a complaint against them. You may watch the panelists discuss the first step in a disciplinary proceeding here.
Second Step in the Process – Investigation
During the second step in the process, Bar Counsel will notify the attorney who has a complaint against them in writing that an investigation is taking place. Md. Rule 19-711(c). It is during the investigation where the attorney has the opportunity to respond to charges and the relevant rules. The investigation must be completed within 90 days of the docketing of the complaint. Md. Rule 19-711(d). The process is quick in comparison to litigation.
Bar Counsel will seek a written response from the attorney. “It is critical that any representation you make to Bar Counsel in the response is truthful and not misleading because it is an independent violation of the Rules to provide false or misleading responses in a written response,” said Gerzhoy. Any false or misleading information can lead to disbarment.
There are instances where investigations have found lawyers did not commit the violation that prompted the investigation, but the lawyer was not truthful in their responses. Their untruthful responses have been an independent basis for discipline. Additionally, Md. Rule 19-308.1(a)-(b) provides that in connection with a disciplinary matter, a lawyer is not to “knowingly make a false statement of material fact” or “fail to disclose a fact necessary to correct a misapprehension…or knowingly fail to respond to a lawful demand for information from [a]…disciplinary authority.” And, of course, Bar Counsel is a disciplinary authority. In the context of a disciplinary and professional misconduct matter, Md. Rule 19-308.4(c)-(d) is also relevant. The rule prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; or that is prejudicial to the administration of justice.
The Smith Case and Independent 8.1 and 8.4 violations
The Smith case demonstrated that an attorney can be disbarred for the “obstruction of a bar inquiry through the submission of fabricated evidence” even where the court finds no violation of the Rule prompting the investigation in the first instance. In Smith, an attorney was charged with violating Rule 5.5 the unauthorized practice of law. Rule 5.5 states a lawyer can’t practice in a jurisdiction in which the lawyer is not admitted and one can’t hold themselves out as a lawyer if they are not a lawyer. The hearing judge held the attorney did not violate Rule 5.5, but the attorney altered documents in support of her District of Columbia Bar application by adding “practicing in MD only” disclaimers on her letterhead. The disclaimer was only added to support her application and was never a disclaimer on her prior letterhead. The hearing judge concluded the lawyer violated MLRPC 8.4 and was disbarred. Therefore, failure to respond truthfully to Bar Counsel’s inquiries can be a basis for disbarment. Attorney Grievance Comm’n v. Smith, 425 Md. 230, 236-37.
Rules 8.1 and 8.4 are always at play if an attorney is not completely truthful or accurate in their representation in response to a disciplinary investigation. This is true in every jurisdiction including Maryland. Gerzhoy advised, “it is, therefore, critical that an attorney is not inaccurate and also does not hide information or fail to disclose information” in an investigation.
Inexperience is no defense
The fact that you are inexperienced in the practice of law or a newly minted lawyer is not a defense. See, e.g., Attorney Grievance Comm’n v. Yi (2020) (lawyer disbarred only three years after graduating from law school because in response to questions from Bar Counsel for, among other things, providing “vague and sometimes misleading” responses to Bar Counsel’s inquiries including that “he never fully explained why he recommended that his client accept the plea offer, and when asked why he neglected to refund the $3,000, he falsely claimed that he tried to contact [client], but she never responded).
Completion of Investigation
After Bar Counsel completes the investigation, Bar Counsel must make recommendations for next steps. (Md. Rule 19-714(a)-e). Under the Rule, Bar Counsel may recommend the follow:
- Recommend dismissal without disciplinary action
- Recommend a Conditional Diversion Agreement (“CDA”) CDA’s address reasons why the attorney violated the Rules. A CDA is appropriate when the attorney’s misconduct does not involve dishonesty and the attorney is not a threat to the public. CDA’s are commonly used when an attorney’s ability to practice law is impaired by alcoholism or mental illness.
- Recommend reprimand
- File statement of charges
- Recommend immediate filing of petition for disciplinary or remedial action
The Peer Review Panel may also recommend dismissal or termination with warning. Md. Rule 19-715(a), (c), (1).
Termination of proceedings following investigation
If satisfied with the recommendations of Bar Counsel or the Peer Review Panel, the Commission may:
- Dismiss complaint or terminate proceedings. Md. Rule 19-715(b)
- Accompany termination with warning. Md. Rule 19-715(c)
- Enter conditional diversion agreement. Md. Rule 19-716
- Reprimand respondent. Md. Rule 19-717
Ms. Gerzhoy and Mr. Grimm looked at the most recent appellate court case opinions to get a sense of how critical it is to cooperate with any investigation by Bar Counsel. What they found were representative examples of lawyers not cooperating fully and wholesomely with a disciplinary investigation. Between March 16 and August 4, 2021, the Court of Appeals ordered disbarment in seven cases. Of those disbarred attorneys:
Five ignored letters from Bar Counsel and/or discovery requests
Three ignored summonses
One refused to provide a statement under oath in response to a Bar Counsel subpoena
Two provided late responses to Bar Counsel – important to timely respond to request
Three made false or misleading statements to Bar Counsel
One evaded a subpoena, and
All but one did at least one of the above.
During that same time, the Court ordered three suspensions. None involved the obstructionist conduct found in the disbarment cases. Gerzhoy indicated “it is apparent that if you are obstructing the process that will most likely result in disbarment.” If you are not being an “obstructionist you are more likely to be in the suspension camp than the disbarment camp.” said Gerzhoy. Gerzhoy and Grimm quickly pointed out that “nothing in the opinions they reviewed explicitly connects the sanction to the lack of cooperation, or says if you would only have made a timely response our sanction would not be disbarment or less than what we are imposing.” Grimm added there is no explicit causal connection, “other than to say it is a very common characteristic of disbarment cases that the lawyer who is disbarred has not been cooperative in the disciplinary investigation process.” Therefore, if you have the opportunity to cooperate you should, but disbarment happens all the time to lawyers who have fully cooperated. If the conduct is worthy of disbarment, but a lawyer fails to cooperate in the process they could place themselves in the disbarment camp even if the underlying conduct does not warrant disbarment. You may watch the panelists discuss the second step in a disciplinary proceeding here.