Key Differences between Attorney Disciplinary Proceedings
in Maryland and the District 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. 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 key differences between attorney disciplinary proceedings in Maryland and the District of Maryland. In the past four weeks, the MSBA featured the basics, disciplinary process, reciprocal discipline and available sanctions in the state courts in Maryland and the disciplinary process, available sanctions, reciprocal discipline and appeals process in the District of Maryland. This is the final article in the series.
There are key differences to highlight between the attorney disciplinary proceedings in Maryland and the District of Maryland including who investigates claims of misconduct, available sanctions, reciprocal discipline and appellate rights.
Who investigates?
In Maryland, there are two Deputy Bar Counsels, one Senior Assistant Bar Counsel, eight Assistant Bar Counsels, two staff attorneys and six investigators. Needless to say, there is significant staff on the state level with full-time lawyers whose sole job is to investigate violations of the Maryland Rules of Professional Conduct. Whereas, the Maryland District Court will appoint an investigator on an ad hoc basis. The investigator appointed by the District of Maryland may have no experience at all in disciplinary matters. Their appointment is discretionary, made by the court with no clear, publicly available policy about how the court chooses the investigator. Based upon Ms. Gerzhoy and Mr. Grimm’s experience, the lawyers who have been appointed are “often partners at prestigious law firms that have white-collar practitioners who have frequently served as prosecutors themselves.” Gerzhoy added, “often it is the case that they have no experience with the disciplinary rules.”
Available Sanctions
The available sanctions in Maryland include warning, conditional diversion, reprimand, suspension and disbarment. The Attorney Grievance Commission has the authority to issue a warning, conditional diversion or reprimand. The Court of Appeals is the final arbiter in the state. In the District of Maryland, the final arbiter is the Court, on recommendation of the Disciplinary Committee.
Reciprocal Discipline
In the Maryland state bar system, there’s an independent evaluation that occurs first before imposing reciprocal discipline. 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). In the Maryland District Court, there is a presumption in favor of imposing reciprocal discipline that is identical to the discipline imposed by the other court, absent extraordinary circumstances. Rule 7053.d.i through iv.
Appellate Rights
In the Maryland state system even though the circuit court makes a recommendation, only the Court of Appeals decides disciplinary cases, and there is no right of appeal and no court to file an appeal. Whereas, in the Maryland District Court an attorney can appeal to the Fourth Circuit. This is the only example that Ms. Gerzhoy and Mr. Grimm are aware of where “a court’s determination under its own disciplinary rules are subject to review by a different court – this is a unique dynamic.”
Guidance and Practical Tips
- Available Guidance and Precedent
State of Maryland
Fortunately, for Maryland State proceedings there is lots of guidance. There are published Court of Appeals decisions and Bar counsel’s website publishes lists of recent disciplinary sanctions affecting licensure. The MSBA also provides advisory ethics opinions which, Mr. Grimm said “generally have a good deal of weight as persuasive authority.”
District of Maryland
The District of Maryland has very little precedence or guidance. Disciplinary cases are rare and there are fewer original actions as opposed to reciprocal actions (discipline). The only public analysis that becomes available is if there happens to be a public opinion on a public reprimand. One may search PACER/Westlaw for individual cases, but there are no reports or statistics that are available for the general public and no advisory opinions. The MSBA opinions will “have the same persuasive weight,” Grimm said, because the district applies the Maryland state rules.
- Practical Tips
Create an atmosphere of reporting mistakes
Ms. Gerzhoy and Mr. Grimm recommend that lawyers “create an atmosphere in your firm where employees including the lawyers feel comfortable reporting mistakes, unhappy clients and bad outcomes.” Mistakes are inevitable, but can be avoided and often corrected if caught early – even if it is a serious mistake. The firm needs to know about a potential disciplinary action against one of its attorneys at the earliest opportunity. The best way to accomplish early notice is to encourage the reporting of mistakes so all employees in the firm feel comfortable to report potential violations.
Firms should provide for their attorney’s defense
Mr. Grimm stated, “it is in the firm’s interest to provide for an attorney’s defense rather than allow one of their attorneys to hang in the wind.” It will depend obviously on the facts of the case. If a lawyer was stealing money from the firm, the firm may not have an interest in supporting their lawyer and defending them. However, said Mr. Grimm, if the lawyer’s misconduct involves conduct arising out of client representation the firm may want to support its lawyer and ensure the disciplinary process goes smoothly.
Malpractice insurance should cover defense of disciplinary proceedings
Mr. Grimm recommended that law firms should make certain their malpractice insurance policy covers defense of disciplinary proceedings. If not, then he suggests adding a rider to cover the defense of disciplinary proceedings.
Hire an expert to defend
Mr. Grimm also recommended “the lawyer and possibly the firm should have independent counsel.” He explained the complexity and specialization of disciplinary cases, and how these matters need to be taken care of by “an expert whose day job it is to focus on the case and bring their specialized experience to the matter,” instead of the firm handling the matter in-house.
Consider Collateral Estoppel issues
Often the same conduct that instigated a disciplinary case could also instigate a malpractice case. There may be a risk that statements made in one proceeding could be imputed against a lawyer in the other proceedings. A stay in either or both of a disciplinary proceeding in Maryland state court or the District of Maryland may be appropriate while a malpractice case is pending, so the disciplinary process does not harm the malpractice case.
Assess privilege issues and duty to clients
Disciplinary matters have the potential to influence the firms’ obligations to other clients. If the client is the complainant, privilege may not be an issue. But, if a disciplinary action arises out of other conduct (e.g., candor to the tribunal), the firm may need to assess whether privileged information could be disclosed in an investigation. By example, Mr. Grimm indicated if a lawyer filed a motion with false allegations, then any investigation will involve looking at communications with the client. The firm will need to assess its clients’ interests and make certain that privileges are protected. This is a perfect example of why the firm should retain its own counsel, he said.
- Available resources (state)
Maryland Court of Appeals
- Opinions in disciplinary cases are available online: https://mdcourts.gov/opinions/opinions
- Amicus Curiarum is a newsletter published monthly by the appellate courts that include recent disciplinary actions. https://mdcourts.gov/appellate/amicus
Attorney Grievance Commission
- Monthly publication of sanctions: https://www.courts.state.md.us/attygrievance/sanctions
- Annual reports summarize disciplinary actions: https://www.courts.state.med.us/attygrievance/annualreport
Summary
The fundamental takeaways from Ms. Gerzhoy and Mr. Grimm’s excellent presentation are that there are critical differences between state and federal intake and management of disciplinary proceedings. Guidance seems to be abundant for the state matters, but the opposite for the federal. Hire an expert at your earliest opportunity to properly handle all the unique nuances in this area of the law. And, ensure your malpractice carrier covers the expenses of defending disciplinary matters to ensure proper handling. Finally, understand mistakes are inevitable. Be prepared and create an atmosphere of compliance with the rules and reporting. You may watch the panelists discuss the critical distinctions between the federal and state disciplinary proceedings below: