Attorney Disciplinary Proceedings for the State of Maryland
Step Three and Four and Reciprocal Discipline
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. Both are members of the Harris, Wiltshire & Grannis legal ethics and malpractice group at the firm. They frequently represent employers and lawyers in disciplinary matters. This article showcases their presentation on the disciplinary process in state courts in Maryland at steps three and four and reciprocal discipline. Steps One and Two were featured on March 2, 2022. In the next two weeks the MSBA will feature articles 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.
Steps One and Two
Last week, the MSBA featured an overview of the Attorney Disciplinary Proceedings for the State of Maryland and Steps One and Two of the process. At the first stage, Bar Counsel may initiate an investigation or a third party may instigate a complaint on their own. Once a formal complaint is filed, Bar Counsel will notify the attorney who has a complaint against them in writing that an investigation is taking place. During this phase (Step Two), the panelists strongly urged attorneys to cooperate fully with Bar Counsel in the investigation. Specifically, Gerzhoy and Grimm recommended that any and all representations made to Bar Counsel be truthful and not misleading. Any representations that are not truthful and are misleading may lead to an independent violation of the Rules. Gerzhoy also stressed that “any false or misleading information can lead to disbarment.” After Bar Counsel completes the investigation, Bar Counsel may recommend dismissal without disciplinary action, recommend a Conditional Diversion Agreement (“CDA”), recommend a reprimand, file a statement of charges or recommend the immediate filing of a petition for disciplinary or remedial action.
A “Statement of Charges,” will be filed by Bar Counsel with the Commission if Bar Counsel determines that conditional diversion or reprimand are not appropriate. Md. Rule 19-714; Md. Rule 19-718. The Commission will review the Statement of Charges and, as appropriate, authorizes dismissal of the statement of charges or the filing of petition for disciplinary action. Md. Rule 19-702(h)(9).
Next, within 30 days of receiving a statement of charges, a Peer Review Panel is appointed. Md. Rule 19-719(a) The Peer Review Panel (“Panel”) is composed of two attorneys and one non-attorney member. The non-lawyer member is a volunteer usually involved in the community. The Panel will consider the Statement of Charges, all relevant information presented by Bar Counsel, and the responses the attorney has provided, and determines whether there is a substantial basis that the attorney has committed professional misconduct or is incapacitated.
The Panel then determines whether a petition for disciplinary or remedial action should be filed. Md. Rule 19-720. Finally, the Panel submits a recommendation to the Commission. The recommendation to the Commission may be with Bar Counsel’s agreement, or separate if no agreement. Md. Rule 19-720(e). To watch the panelist discuss Step Three click here.
At Step Four, a Petition for Disciplinary or Remedial Action will be filed in the Court of Appeals by Bar Counsel on behalf of, and on direction of, the Commission. Md. Rule 19-721 The Court will appoint a circuit court judge to preside over a hearing. Md. Rule 19-722 The Respondent may file their answer to the petition within 15 days. Md. Rule 19-724. Other pleadings including motions to dismiss are not permitted. Md. Rule 19-725.
The discovery process takes place under the general rules for circuit court procedure. Md. Rule 19-726. The Circuit Court will hold a hearing and submit findings of fact and conclusions of law within 120 days. Md. Rule 19-727. Gerzhoy stated, “participation in the circuit court hearing is essential.” Gerzhoy found that in 7 of the 11 recent disbarment cases she reviewed, the Court of Appeals noted that the respondent either failed to appear at, or failed to participate in, the evidentiary hearing.
A respondent may file exceptions to the circuit court findings within 15 days. Md. Rule 19-728. Next, oral argument is then scheduled and the court reviews conclusions of law de novo. Md. Rules 19-741. The Court may do one of the following:
- Placement on inactive status for some period of time
- Dismissal of proceedings
- Remand for further proceedings
Reciprocal Discipline and Related Issues
Once a lawyer is disciplined by one court, all the other courts the lawyer is admitted may want to discipline them as well. It’s usually the same discipline which is why it is called reciprocal discipline. Although there are some caveats.
A general rule, as stated by Mr. Grimm, is “if you are ever in a reciprocal discipline analysis and trying to decide whether something needs to be reported to another bar for reciprocal discipline you need to look at the rules for both jurisdictions because the original jurisdiction is going to define what it considers to be discipline, but the reciprocal jurisdiction will define what types of conduct it wants reported.” Mr. Grimm also stated he is not aware of any jurisdiction that requires you to report less than discipline, but if you are faced with a client that has to report to other bars, then he recommends “checking the court to make sure there is not some outlier.”
What is discipline that must be reported to other bars?
Under the Maryland Rules, conditional diversion and termination with warning do not constitute discipline. Md. Rules 19-715(c)(3) (warning); 19-716(f) (conditional diversion. A reprimand by the Commission and anything more severe does constitute discipline. Md. Rule 19-717(g). However, under the Md. Rules, diversion and termination with warning do not constitute discipline. Hence, what is discipline that has to be reported to other bars if imposed by the Maryland Court of Appeals? Mr. Grimm recommended checking the other jurisdictions to clarify what should be reported.
What if you have been disciplined by another court?
An attorney who is a member of the bar in Maryland, who is disciplined by another bar must inform Bar Counsel promptly. Md. Rule 19-737. This is also true for any other court where an attorney is admitted. When you report your discipline, Bar Counsel may file a petition for disciplinary or remedial action which is the last step in the process getting the matter to the Court of Appeals. Id. Reciprocal discipline will not be ordered in specific extraordinary (limited) situations. See Md. Rule 19-737(3)(e)(1)-(5). The specific extraordinary situations basically amount to whether your discipline was a result of a due process violation.
Once the Court of Appeals is faced with a petition the Court can impose corresponding discipline, it can enter an order designating a judge to hold a hearing or it can enter any other appropriate order. (Md. Rule 19-737(f)(1)-(3)
How does the court handle discipline by other courts?
The Court is “inclined, but not required,” to impose corresponding discipline. Att’y Grievance Comm’n of Md. v. Weiss, 389 Md. 531, 886 A.2d 606 (2005). Hence, the Court doesn’t just rubber stamp the other jurisdictions’ discipline. The Court has a duty to independently assess sanction imposed by the other jurisdiction and recommendation by Bar Counsel. Att’y Grievance Comm’n of Md. v. Katz, 429 Md. 308, 55 A.3d 909 (2012). Mr. Grimm added, the court must “assess conduct in the sanction in the light of what a Maryland lawyer would expect if the conduct has occurred in Maryland.” Theoretically, this could result in a lighter or more severe sanction. Grimm noted he recently reviewed an order in the past term where a Maryland lawyer received a two year suspension in another jurisdiction, but the Maryland Court of Appeals issued an indefinite suspension with the right to re-petition once he was reinstated in the other jurisdiction. The opinion was not accompanied with an opinion to determine the reasoning of the court. The point is that, if a lawyer licensed in Maryland is disciplined by another jurisdiction, the Maryland court will conduct an independent evaluation to determine what the reciprocal discipline should be in Maryland. The court must consider its own precedent and determine what sanction a lawyer would expect if the conduct had occurred in Maryland. Att’y Grievance Comm’n of Md. v. Gordon, 413 Md. 46, 991 A.2d 51 (2010). This can include imposing a more severe sanction than the original court imposed. E.g., Order, Attorney Grievance Commission v. Sitton, Sept. Term 2021, Misc. Doc. AG No. 12 (Sept. 1, 2021).
Conviction of a crime
If an attorney has been convicted of a crime what do they have to do? An attorney charged with a serious crime has to promptly inform Bar Counsel of the filing of the charge, any guilty verdict, entry of a conviction, and a final disposition of the charge. Md. Rule 19-738 What is important to note here is how early in the process an attorney in Maryland must get Bar Counsel involved, i.e. “the filing of a charge.” Grimm said to “report early and often if you have been charged with a serious crime.” A “serious crime” is defined in the Rules. Md. Rule 19-701(t). The Rule basically defines “serious crime” as felonies and crimes of dishonesty. A good rule of thumb would be if it’s “the kind of crime you can impeach a witness with, then it’s probably the kind of crime you have to report,” said Grimm. Nevertheless, Grimm also advised to review the definition and the statute because Maryland defines misdemeanors differently than a lot of other jurisdictions, e.g. misdemeanors that carry ten year sentences which are considered felonies in other jurisdictions.
Bar Counsel may file a petition for discipline or remedial action. Then, the Court will issue a show cause order within 15 days for why the lawyer should not be temporarily suspended. Afterwards, the petition for disciplinary or remedial action will run its course.
Grimm shared trends that he pulled from the Bar Counsel annual report. The Bar Counsel website is an excellent resource for statistics, data and information on specific cases and how they’ve been disposed. Apparently over the past 10 years from 2011 to 2021, there has been a cumulative reduction of about one hundred cases. Surprisingly, there was also an additional one hundred case reduction from 2019 to 2021. Grimm noted that “many lawyers were working from home during COVID, but the declining numbers of complaints against lawyers was promising.”
Other information Grimm discovered from the website include a breakdown of types of dispositions that have been received. He discovered that one of the more common categories is a public reprimand by the commission for a total of 226 over the past ten years. There were also 159 disbarments by consent, 156 disbarments and 233 suspensions over the same 10-year period. All the other categories (dismissal, petition for reinstatement and resignation) are individually less than one hundred.
The Bar website also reflects a breakdown of the type of conduct that has resulted in discipline. Categories that jump out significantly are competence, diligence, client communication, maintaining complete records, accounting for funds, misappropriation of client funds, and criminal misconduct. Interestingly, Grimm noted, if you set aside the criminal conduct what lawyers are getting sanctioned for are types of cases where lawyers are over extended with overwhelming caseloads. “That’s when you start seeing trouble,” Grimm said. He advised strongly to keep your accounting and management of your trust accounts up to date, and respond to your client’s emails. In sum, Grimm said lawyers are more likely to find themselves in a disciplinary proceeding as a result of disorganization and inability to keep up with the demands of the job. Gerzhoy underscored that “the standard to maintain a trust account is pretty close to perfection.” Therefore, Gerzhoy said, “it is super, super important to make sure that client funds are kept in trust for the client and that the trust account never gets below the amount that is owed to the client. To watch the panelists discuss Step Four and Reciprocal Discipline click here.