Disciplinary Proceedings in the District of Maryland
Disciplinary Process and Available Sanctions
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. They frequently represent employers and lawyers in disciplinary matters. This article showcases their presentation on the Disciplinary Process and available sanctions in the District of Maryland (federal). The disciplinary process in state courts in Maryland including the general overview of the disciplinary process and steps one through four along with reciprocal discipline were featured in the last two weeks. In the next two weeks, the MSBA will feature articles showcasing Ms. Gerzhoy and Mr. Grimm’s presentation on reciprocal discipline and the appeals process in the District of Maryland and discuss the key differences between the state and federal disciplinary processes.
The disciplinary process in the District of Maryland is substantially different than the process in the state of Maryland. There are similarities in terms of investigation and sanctions, but the investigative process highlights the different approach taken by the federal court. And while Maryland Bar Counsel robustly reports data on the types of cases investigated and sanctions issued, the District Court does not publicly disclose that same type of information. Moreover, there is very little public information on how the District of Maryland’s disciplinary procedure operates – the proceedings are confidential.
Who is subject to discipline by the District Court?
Any attorney practicing before the District Court in Maryland in any way, shape, or form is within the reach of the court’s disciplinary authority. This is true regardless of whether the attorney is admitted to the Court. Local Rule 703. Basically, any attorney touching a District of Maryland case, whether the attorney is local, pro hac vice, or somehow remotely involved, is within the reach of the court’s disciplinary authority.
Conduct Subject to Discipline
Any conduct “which, if substantiated, would warrant discipline of an attorney,” is subject to discipline. Local Rule 705.1.a. It is not expressly limited to conduct that occurred with a matter before the District. The example given by Mr. Grimm was if a District of Maryland Bar attorney commits misconduct in the District of Columbia, then a strict reading of the Rules may result in reciprocal discipline, but it could potentially give the District of Maryland an opportunity to proceed directly for that same conduct. Thankfully, attorneys don’t need to learn two different sets of ethical rules because the District Court follows the Maryland Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals. Local Rule 704.
If a disciplinary proceeding is initiated, the Disciplinary Body will make a recommendation to the Court. The Disciplinary Body is composed of judges of the Court. Mr. Grimm stated he has not been able to find a roster of members. He added that it is the Court, not the Disciplinary Body, who will determine the final disposition. You can watch the panelists discuss the basics here.
How does a disciplinary proceeding get initiated?
Initiation of a disciplinary proceedings can happen in several different ways. If any misconduct comes to the attention of any judge, the judge can refer the misconduct to the Disciplinary Committee. Local Rule 705.1.a. If, the Court receives a complaint from the public, or Maryland Bar Counsel, or from any other source, the Disciplinary Committee (“Committee”) will conduct a preliminary investigation to determine whether the allegations are substantiated and whether it merits further proceedings. Rule 705.1.j.i. The Committee may investigate or refer the matter to the Maryland Attorney Grievance Commission or any other state bar where the attorney is licensed. Mr. Grimm stated, “it is far more common for the District Court to refer a matter out than it is to handle the matter in-house.” If there is no need for additional investigation, then the Committee can recommend dismissal. However, if there is no basis for discipline, and the matter was referred to the Committee by a judge of the Court, the matter may not be dismissed without investigation unless the referring judge consents. Local Rule 705.1.j.iii. Also, if there is no need for additional investigation, the Committee may recommend formal proceedings or imposition of a warning, conditional diversion agreement, or other conditions.
Appointment of Attorney-Investigator
If the Committee decides an investigation is warranted, the Court will appoint an attorney-investigator (among the Bar) to conduct the investigation. Local Rule 705.1.b. A Notice will be given to the respondent (attorney) who may move to disqualify the investigator within fourteen days. The attorney-investigator then proceeds with the investigation interviewing witnesses, taking depositions and issuing subpoenas for documentation. At the conclusion of the investigation, the attorney-investigator will submit a report and recommendation. Formal proceedings or other types of dispositions such as dismissal, warning, deferral, etc. may be recommended.
The Committee will review the attorney-investigator’s report and make a recommendation to the Court on whether to dismiss the matter, initiate formal proceedings or impose a warning, condition diversion agreement or additional conditions. Local Rule 705.1.b.
Initiation of Formal Proceedings
If disciplinary proceedings are initiated, the Court will issue the respondent a show cause order to the attorney to show cause within 30 days why they should not be disciplined. Local Rule 705.1.c. The attorney-investigator’s report and recommendation will accompany the order. Any exhibits to the attorney-investigator’s report are available upon request. Mr. Grimm indicated the attorney’s response is similar to a “summary judgment brief on the merits of why the attorney should or should not be disciplined.”
A hearing will be held if the respondent wishes to be heard in mitigation or if there are material issues of fact. Local Rule 705.1.d. If it is determined a hearing needs to take place, the attorney-investigator that was appointed to investigate the case will be assigned to prosecute the case, if possible. The Court will appoint an attorney-investigator if one has not already been appointed.
Following a hearing, the presiding judge or panel prepares a report and recommendation of an appropriate remedy and/or sanctions for consideration by the Committee. Local Rule 705.1.3. The Committee will then make a recommendation of final action to the Court. The Court will determine the final action with the Chief Judge issuing the appropriate Order on behalf of the Court. If there is no hearing, then the Committee will recommend the appropriate remedy and/or sanction. The Court will then review the Committee’s recommendation and determine final action. You can watch the panelists discuss the disciplinary process here.
Available sanctions are defined in Local Rule 705.1.h. and include:
- Disbarment, suspension, public or private reprimand. Rule 705.1.h.i.
- Disbarment by consent. Local Rule 705.1.g.
- Termination with a warning. Rule 705.1.h.ii.
- Conditional diversion. Id.
It is important to note that termination with a warning and conditional diversion are not considered discipline under the Local Rules. Although the proceedings are confidential unless otherwise ordered by the Court, any disbarment, suspension, or public reprimand is public along with the panel’s report and recommendation. Local Rule 705.1.f. Mr. Grimm provided examples of conditions that may be imposed if the outcome is a conditional diversion (not discipline):
- Demonstration that the attorney is mentally and physically competent to resume practice of law.
- Engagement of satisfactory attorney to monitor respondent’s legal practice.
- Proof that former clients have been reimbursed for fees paid in advance for services not completed.
- Satisfaction of any judgment providing reimbursement for any claim arising out of the respondent’s practice.
- Restitution to any client.
- Limitations on nature or extent of respondent’s future practice of law in the Court.
- Payment of costs.
- Issuance of an apology.
- Participating in a program tailored to individual circumstances that provides the respondents with office management assistance, lawyer assistance, alcohol or substance abuse treatment, psychological counseling, specified course in legal ethics, professional responsibility, or continuing education.
- Additional reasonable conditions for good cause shown.
Basically, the Court may impose any condition “the Court thinks is appropriate under the circumstances to protect the public and make sure the lawyer is appropriately rehabilitated,” said Mr. Grimm. To watch the panelists discuss the available sanctions click here.
Join us next week as we discuss reciprocal discipline and the appeals process in the District of Maryland.