This article will briefly review the evolution of legal professional ethics in Maryland during the last 25 years. The article will focus first on the Rules themselves, then the process for invoking enforcement of the Rules, the Office of Bar Counsel, and lastly, the Court of Appeals.
Twenty-five years ago, the Code of Professional Responsibility was significantly different than the current structure of the Maryland Rules of Professional Conduct which were first adopted in 1987. Previously, lawyers were guided by Canons of Ethics and Disciplinary Considerations; whereas we now have codified Rules of Professional Conduct for Maryland lawyers which have continued to evolve.
The Court of Appeals did not simply adopt the model rules as proposed by the ABA, and accordingly, the Rules in Maryland differ from other jurisdictions in many respects. By way of illustration, Rule 4.2 (now codified as 19-304.2) was modified on November 1, 2001. The Court essentially re-wrote Rule 4.2 in order to provide a ‘bright line’ guide as to when a former employee could be contacted ex parte. Prior to that time the issue was very much unsettled and uncertain.
The evolution of the Rules of Professional Conduct has been and is an ongoing process. By way of a recent example, on June 14, 2021, the Court of Appeals of Maryland approved significant changes in the procedure for attorney disciplinary proceedings. Those changes will be effective on October 1, 2021, and will include, amongst other things, an additional confidential means of resolving an attorney grievance matter. Specifically, the Rules will now include the possibility of a dismissal with a letter of cautionary advice, which will not constitute discipline. The amendments will also permit the Court of Appeals, under certain narrow circumstances, to stay the effect of discipline for lawyers where conditions would justify a stay of the sanction to be entered.
Additional changes to the Rules are currently being considered as our system continues to evolve. A distinguished committee of judges and lawyers for example, is currently reviewing Rule 1.14 (19-301.14). That Rule deals with clients under a disability and will hopefully provide guidance to the Bar as to the proper way to represent a person in that situation. The Rule as currently drafted is certainly not a model of clarity and in its current form provides little guidance and a great deal of ambiguity. The Committee, under the direction of Senior Judge Patrick Woodward, is considering alternatives to be presented to the Standing Committee on Rules and Procedure of the Court of Appeals of Maryland.
Procedural Changes in the Disciplinary Process
A significant change in attorney discipline took place at the turn of the 21st century. The Court of Appeals, by Order on June 6, 2000, appointed a special committee of judges to draft an alternative proposal to expedite the attorney disciplinary process.
Prior to that time, the prosecution of attorney disciplinary matters was significantly different than at present. Initially lawyers went before inquiry panels made up of lawyers, usually constituted of three (3) members. The proceedings before the inquiry panels were on the record and the Rules of Evidence applied. In short, they were mini trials of the disciplinary complaint. The decision of the Inquiry Panel was reviewed by the Inquiry Board. The Board could adopt the decision of the Panel, reject the decision of the Panel, or remand to the Panel for further proceedings. The Court of Appeals would then review the decisions of the Panel.
The chief problem with the prior system was that it was incredibly slow. Matters were taking as long as six, seven and even eight years to come before the Court for review. The Court decided this procedure was not workable, that it was not fair, and that it did not protect the public.
On November 30, 2000, the Court of Appeals rescinded the old versions of the Rules in Title 16, Chapter 700, and adopted the proposal drafted by Court of Appeals’ Judges Alan Wilner and Glenn Harrell, which now constitute our current Attorney Disciplinary procedures. The revised procedure requires timely responses and disposition of matters. Under the new (now-current) system, when charges are filed against an attorney in the Court of Appeals, the matter is promptly assigned to a Circuit Court judge for an evidentiary hearing and factual determinations, and must be heard by the assigned judge within 120 days of the date of service. Extension of that deadline is only by Order of the Court of Appeals and generally only for good cause.
Prior to charges being filed in the Court of Appeals, the current system allows for peer review as well as review by the Attorney Grievance Commission as to whether to accept the peer review panel’s recommendation, reject the recommendation, or instruct Bar Counsel to institute charges. The procedure at present is significantly more streamlined than the system’s prior iteration.
As a side bar, during the arguments before the Court of Appeals concerning the adoption of the current procedure, the Bar requested that the Court of Appeals publish all attorney disciplinary cases. Prior to that time, it was the custom and practice of the Court to publish only certain attorney disciplinary cases, but not all. The rationale behind requesting all cases be published was to put lawyers on notice of the disposition the Court was making in attorney disciplinary cases, and to allow a more efficient ability on the part of Bar Counsel, respondent lawyers and their counsel to negotiate dispositions without going through the entire dispositive process. It was hoped that by so doing, the Court’s load in determining disciplinary cases, which is significant, might be lessened.
Changes in the Office of Bar Counsel
The Office of Bar Counsel has also significantly changed in the last quarter century. L. Hollingsworth Pittman was the first Bar Counsel in the State of Maryland. He was succeeded by Melvin Hirshman who in turn was succeeded by Glenn M. Grossman, followed by our current Bar Counsel, Lydia E. Lawless.
The Office of Bar Counsel evolved significantly under the tenure of Messrs. Hirshman and Grossman. The Office added a staff, a paralegal charged chiefly with review of Attorney Trust Accounts and retained lawyers with experience in immigration practice due to the exploding nature of complaints against lawyers in that discipline. Fairly recently, the Office moved from what was shared office space at 100 Community Place in Annapolis to a separate and distinct Office of Bar Counsel now located on Harry S. Truman Parkway in Annapolis.
The Office has continued to evolve under the tenure of the current Bar Counsel. For example, the Office now has a Certified Public Accountant reviewing Attorney Trust Accounts (Charles E. Miller, IV) as well as a trained staff of 11 lawyers and five forensic investigators, who deal with everything from screening potential complaints to trying sophisticated cases on a regular, recurring basis before Courts in the State of Maryland.
Evolution of Decisions by the Court of Appeals
The evolution of decisions by the Court of Appeals has been considerable during the last two and a half decades. Through its decisions, the Court has sent messages to the Bar as to the nature and extent of conduct that is deemed to be utterly intolerable. By way of example, in 2001, the Court of Appeals of Maryland decided Attorney Grievance Commission v. Vanderlinde.
A regular recurring theme before the Court then and now is the improper use of Attorney Trust Accounts, whether by accident, inexperience, or otherwise. A variety of defenses have been asserted over the years for inappropriate trust account use, including arguments that the lawyer was simply “borrowing” funds; the lawyer was under a disability such as substance abuse or mental health issues; inadequate training or experience; and, a variety of descriptive terms to avoid the word “theft” with regard to the use of the property of others.
In Vanderlinde, Judge Cathell, writing for the majority, made clear that the Court would not tolerate any removal of funds without reason and cause from an Attorney’s Trust Account nor would it accept co-mingling. The Court indicated in no uncertain terms that the use of alcohol or mental health issues would not be an excuse unless it was the root cause of the problem, i.e. so debilitating that the attorney could not conform his or her conduct to the law or the MRPC. In plain English, if the lawyer knew what he or she was doing, the lawyer was going to be found responsible based on Vanderlinde and disbarred. The case was intended by its author, as expressly stated, to provide a bright line to the Bar.
In the years following the Vanderlinde decision, rulings from the Court of Appeals have not always been as eager to apply a bright line rule. The Court decided Attorney Grievance Commission v. Bell, in which the attorney used his Attorney Trust Account to pay for his Direct TV bill and AT&T bill, and wrote checks payable in cash. That lawyer was not disbarred but rather, received an indefinite suspension with right to reapply in thirty (30) days due to the Court’s consideration of mitigating factors, including the respondent’s voluntary corrective action, his lack of intent to misappropriate, and his completion of a course in recordkeeping. Although these mitigating factors do not alleviate an attorney’s responsibility, factual circumstances and mitigating factors can result in greatly different sanctions, from a suspension with a right to reapply in thirty (30) days to disbarment, which is what the Court ordered in Attorney Grievance Commission v. Jones. (In Jones the attorney used his trust account to pay for his cable bill, his Client Protection Fund dues and to write checks to his wife, essentially the same violations as in Bell , but unlike Bell the respondent did not cooperate with Bar Counsel nor present any mitigating factors to the Court, and was disbarred).
Likewise, in Attorney Grievance Commission v. Coppola, the respondent lawyer had falsely confirmed that a Will and estate plan had been signed by a testator when it had not. The circumstances surrounding the decision to make that false assertion were sympathetic. All members of the family gathered around the testator who, due to medical issues, no longer had the ability to sign her own estate plan. All understood that the prepared estate plan would save the Estate at least $10,000, and the family members begged the lawyer to assist them in putting the plan in effect, indicating that their mother certainly would have agreed to do that had she been medically able. The lawyer reluctantly agreed. Subsequently, one of the children disagreed with the disposition and brought the matter to the Office of Bar Counsel’s attention. The lawyer cooperated in every way possible, regurgitated his fee, was extraordinarily remorseful, and was still disbarred. Yet under circumstances almost identical in Attorney Grievance v. Keating, decided in 2019, the Court did not disbar Ms. Keating, but rather, provided her an indefinite suspension, without any additional mitigating factors in her favor.
From a thorough review of cases over the last 25 years, one thing is certain. The disposition of the lawyer’s fate by the Court of Appeals is fact sensitive. Regardless of the acts or omissions of the lawyer, slightly different sets of facts can result in significantly different outcomes.
In short, while the Rules may have been modified, and the procedure has been streamlined, little has changed over the last 25 years when one considers the disposition of attorney disciplinary matters.