Discipline in the District of Maryland
Reciprocal Discipline and Appeals
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, the fourth in this series, showcases their presentation on reciprocal discipline and appeals in the District of Maryland. In the previous three weeks, the MSBA featured the basics, disciplinary process, reciprocal discipline and available sanctions in the state courts in Maryland and the disciplinary process and available sanctions in the District of Maryland. Next week, the MSBA will feature the key differences between the disciplinary processes in both jurisdictions.
The reciprocal discipline process in the District of Maryland is similar to the reciprocal process in state court, yet unique. Interestingly, there is an appeals process in the federal system for disciplinary orders. Appeals are rare, but the fact there is an appellate procedure for a disciplinary order in the District of Maryland is out of the ordinary.
Reciprocal Discipline in the District of Maryland
In the District of Maryland, warnings and conditional diversion are not considered discipline by the court. An attorney, is required tonotify the District of Maryland within 30 days of discipline imposed by other courts. Local Rule 705.3.a. This includes disbarment, suspension, public reprimand or public censure. Local Rule 705.3.b, e. The Court will not impose reciprocal discipline for other sanctions. Rule 705.3.e. Public censure is generally considered discipline, but if for some reason there’s a jurisdiction that does not treat public censure as discipline, the District of Maryland still wants an attorney to report it. Mr. Grimm recommended “reviewing the rules in both jurisdictions to ensure you are complying with both courts.”
The Court will impose identical discipline to that imposed by another court absent certain extraordinary circumstances. Local Rule 705.3.d.i through iv. Note, the Maryland Court of Appeals (state court) uses the terms “corresponding discipline.” The Maryland Court of Appeals will conduct an independent analysis of the other jurisdictions’ discipline to see what the proper discipline should be in Maryland. In the federal system in the District of Maryland, the Court explicitly states in the rules that it will just mirror the other jurisdictions disciplinary imposition by ordering “identical discipline.” Id. The District of Maryland’s rules have one exception to imposition of identical discipline. An attorney would need to show certain extraordinary circumstances to invoke the exception. Mr. Grimm suggested that standard could be met if an attorney’s due process was deprived, but is highly unlikely to prove.
An attorney must report criminal convictions. Any crime involving false swearing, misrepresentation, fraud, willful failure to file income tax return, deceit, bribery, extortion, misappropriation, theft, or attempt or conspiracy or solicitation of the above. Rule 705.2.a.i. These are the types of crimes that reflect dishonesty in lawyers. An attorney has a duty to disclose the conviction within 30 days. Rule 705.2.a.v. In contrast, the state courts require an attorney to disclose a charge (not conviction) to Bar Counsel. Upon a finding of guilt, the court will immediately suspend the attorney and then proceed with the show cause process. Rule 705.2.a.ii.
“Many federal practitioners in Maryland are also admitted not only in the Fourth Circuit, but also the Supreme Court. It is imperative that an attorney check all these rules because all the courts want to know about reciprocal discipline imposed by any bar where you are admitted,” Mr. Grimm said. You may watch the panelists discuss reciprocal discipline in the District of Maryland here.
Yes, you can appeal a disciplinary decision issued by the District of Maryland to the Fourth Circuit (unlike state court). Mr. Grimm stated appeals are “rare and so the body of law is not well defined.” For example, he said the case law does not clearly define the standard of review, although he believes it is safe to assume that it is highly deferential. The Fourth Circuit has reversed disciplinary decisions by the District of Maryland, See, e.g., Matter of Braverman, 549 F.2d 913, 921 (4th Cir. 1976) (“Because the evidence relied upon by the district court does not support its ultimate finding that Braverman has not been rehabilitated…we reverse and remand with instructions to admit Braverman to practice in the district court.”)
Ms. Gerzhoy noted it is rare and uncommon for the Fourth Circuit to reverse the District Court. To illustrate her point she indicated there are a handful of cases yet the most recent case was Braverman (1976).
Finally, the panelists shared a case that contains a general discussion of appealability of final and non-final disciplinary orders, see Brief of Court-Appointed Amicus Curiae Addressing Standing to Appeal, Wisconsin Voter Alliance v. Harris, No. 21-5056 (D.C. Cir. Sept. 28, 2021) (ECF No. 1915896). You may watch the panelists discuss the appellate process in the District of Maryland here.
Join us next week as the MSBA closes the series on Attorney Discipline in the State of Maryland and the District of Maryland with key differences between the two disciplinary processes.