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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Maryland Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

The conduct of lawyers in Maryland generally is governed by the Maryland Lawyers' Rules of Professional Conduct. An Appendix to the Maryland Rules contains the text of these Rules of Professional Conduct. Maryland Rule 16-812 reflects the adoption of these ethics rules. Md. Code Ann., MD Rules 16-812 (1998).

In this material, the Maryland Lawyers' Rules of Professional Conduct are denominated within this text by the rule number used in the Appendix to the Rules (MD Rules 1.1-8.5). The various Maryland Rules of practice and procedure, including the Maryland Lawyers' Rules of Professional Conduct, are designated in this text as "Maryland Rule _____" or Rule ______."

0.1:102      "Other" Law and Moral Obligation [See also 0.2:250]

Maryland common law interprets and often expands the obligations and duties of lawyers recited in the Maryland Rules. [See, e.g., Section 0.2:250 (Sanctions in Judicial Proceedings).] As aptly noted in the preliminary Scope Note of the Maryland Lawyers' Rules of Professional Conduct, the Rules are not intended to be -- and in fact cannot be -- exhaustive in defining a lawyer's moral and ethical obligations.

0.1:103      Background of the Maryland Rules of Professional Conduct

The Maryland Lawyers' Rules of Professional Conduct took effect on January 1, 1987, after being submitted for approval to the Court of Appeals of Maryland by the Select Committee to Study the American Bar Association Model Rules of Professional Conduct. The Maryland Code of Professional Responsibility (the "Maryland Code") was in effect before January 1, 1987. (The Maryland Code remains in effect today to govern lawyer conduct before the promulgation of the Maryland Lawyers' Rules of Professional Conduct.) The Maryland Rules are fashioned after and in most respects are the same as the American Bar Association ("ABA") Model Rules of Professional Conduct; a similar comparison holds true for the former Maryland Code and the ABA Model Code of Professional Responsibility.

A comparison of the current Maryland Rule to any corresponding former Maryland Code ethical canon or disciplinary rule follows the comment text of the current Rule. Although neither is authoritative, the code comparison as well as the comment are valuable for an understanding of the evolution and intent of the ethical rules created by and for lawyers in Maryland.

0.1:104      Unusual Aspects of the Maryland Ethics Rules

This section has not yet been completed.

0.2:200   Forms of Lawyer Regulation in Maryland

0.2:210      Judicial Regulation

The Court of Appeals of Maryland ("Court of Appeals") is charged with responsibility for promulgating rules applicable to the admission, conduct and discipline of lawyers in Maryland. Alan F. Post Chartered v. Bregman, 349 Md. 142 (1998); Attorney General v. Waldron, 289 Md. 683 (1981). This judicial power is implied or inherent from the Maryland Constitution. See Alan F. Post, 349 Md. at 163; Waldron, 289 Md. at 691. The legislature aids the judiciary in this regulatory function, but the courts retain the fundamental authority and responsibility to set the rules for lawyers. Id. See also Comment, Discipline of Attorneys in Maryland, 35 Md. L. Rev. 236 (1975), and, for examples of legislative involvement, see Md. Code Ann., Bus. Occ. & Prof. 10-301 et seq. (1995) (officially designated under 10-701 as "The Maryland Lawyers Act").

The rules regulating lawyer conduct in Maryland are adopted by rules orders that have been approved by a majority of the members of the Court of Appeals. MD Rule 16-801(a). The Court of Appeals has appointed a Standing Committee on Rules of Practice and Procedure ("Rules Committee"), composed of judges, lawyers and others familiar with judicial administration, to consider and recommend the adoption of, and changes to, Maryland rules. MD Rule 16-801(b). See Md. Code Ann., Cts. & Jud. Proc. 13-301 (Supp. 1997). The Rules Committee is chaired by the Chief Judge of the Maryland Court of Special Appeals, The Honorable Joseph F. Murphy, Jr. Information regarding current and proposed Maryland Rules may be obtained by contacting:

   Sandra F. Haines, Rules Committee Reporter
   Standing Committee on Rules of Practice and Procedure
   100 Community Place, Room 1517
   Crownsville, Maryland 21032
   410-514-7040.

Judicially-created rules affecting lawyers in Maryland include:

The Maryland Lawyers' Rules of Professional Conduct. In 1986, the Court of Appeals adopted the The Maryland Lawyers' Rules of Professional Conduct. MD Rule 16-812. These rules replaced the Maryland Code of Professional Responsibility for conduct occurring after January 1, 1987. Id. These Rules carry the force of law. Alan F. Post, 349 Md. at 162. See narrative details of these Rules in this material.

The IOLTA System. The Court of Appeals promulgates the rules detailing the statutorily mandated system for handling lawyer trust account funds, and designates the allocation of interest on those funds. MD Rules 16-601 to 16-612. See The Maryland Lawyers Act 10-301 to 10-307. [See also Section 1.15:110 for further discussion of the IOLTA system].

The Clients' Security Trust Fund. With statutory support, the Court of Appeals has exercised its regulatory authority over lawyers by establishing a Clients' Security Trust Fund, the annual payment into which is a condition precedent to practicing law in Maryland. MD Rule 16-811. [See Section 1.15:120 below for further details on the Clients' Security Trust Fund.]

The Rules Governing Bar Admission. Beyond promulgating rules to govern lawyer conduct, the Court of Appeals regulates the admission of new lawyers through its Rules Governing Admission to the Bar of Maryland, Rules 1-22. [See also Section 8.1:200 for discussion of bar admission in Maryland.]

The Judicial Conduct Codes. The Court of Appeals has adopted The Maryland Code of Judicial Conduct, containing canons of ethics governing jurists. MD Rule 16-813. It has also promulgated ethical canons for judicial appointees, The Code of Conduct for Judicial Appointees. MD Rule 16-814. The Committee notes that follow the various canons of judicial ethics provide valuable evidence of the intention of the Rules Committee (and the Court of Appeals) to limit the discretion of individual members of the bench in various areas of conduct in favor of a uniform standard and perception of impartiality and integrity. See, e.g., MD Rule 16-813, Committee note to Canon 2C.

What are rules without a mechanism for enforcement? Until 1965, attorney discipline processes in Maryland were dictated by statute. See Md. Ann. Code art. 10, 12 (1968). In 1965, the Court of Appeals adopted rules that left the local bar associations responsible for the intake and prosecution of complaints. See MD Rules BV 1-11 (1965). Experience under this system was uneven, inefficient and generally deleterious to a positive public perception of the profession's self-policing capabilities, according to a special committee of the Maryland State Bar Association (MSBA), which recommended a complete restructuring of the investigation and initial prosecution procedures in the system. MSBA, Report of the Special Committee on Grievance Procedures at 2 (1974). See Comment, Discipline of Attorneys in Maryland, 35 Md. L. Rev. 236 (1975), for an analysis of the evolution of attorney discipline in Maryland through 1975. In February 1975, the Court of Appeals promulgated new rules that created the Attorney Grievance Commission of Maryland, in much the same form that it now exists. [See Sections 0.2:230 and 0.2:240 for details of the disciplinary system.]

0.2:220      Bar Organizations

The Maryland State Bar Association ("MSBA") has a Standing Committee on Ethics ("Committee on Ethics"). The existence of the committee and its mandate to provide interpretations of the ethics rules covering lawyers and judges in Maryland derive from the MSBA's Bylaws. See MSBA Articles of Incorporation and Bylaws, art. VII. Since 1978, the Committee on Ethics has been publishing written opinions interpreting the Maryland ethics rules ("Ethics Opinions"). These opinions, while having no precedential effect, have become a resource to which Maryland lawyers frequently resort. See Attorney Grievance Comm'n v. Gregory, 311 Md. 522, 531-532 (1988) (MSBA Ethics Opinions are advisory only and therefore not binding on the court, but may be helpful before the Attorney Grievance Commission "where reasonable reliance upon an Ethics Opinion on point . . . is likely to have a significant effect . . . . " ) Requests for opinions are submitted to the Committee on Ethics. In response, formal analyses are prepared by volunteer lawyers serving on the Committee and are selectively cataloged and indexed. "Opinions on Ethics and Professional Responsibility" is published by the Committee on Ethics. Information or Ethics Opinions from the Committee on Ethics may be obtained by contacting:

   The Committee on Ethics
   c/o Maryland State Bar Association
   Maryland Bar Center
   520 West Fayette Street
   Baltimore, Maryland 21201
   410-685-7878

The MSBA also maintains an "Ethics Hotline." It is staffed by practicing attorneys who volunteer on a monthly basis to respond to telephone inquiries from attorneys regarding ethics-related matters. The list of current Hotline attorneys may be obtained from MSBA Headquarters (410-685-7878); it is also published in the Maryland Bar Journal.

Since 1992, Maryland has required completion of a course on legal professionalism before admission to the bar. Maryland Rules Governing Admission to the Bar, Rule 11. The MSBA Professionalism Committee, under the direction of the Court of Appeals, presents the one-day course twice annually, between notification of the bar examination results and formal admission to the bar. The mandatory program will continue at least through the year 2000 by which time the Court of Appeals will decide whether to continue the course. Maryland Rules Governing Admission to the Bar, Rule 11(c). In the meantime, the MSBA has renewed the recommendation, first proposed at its 1989 professionalism conference and subsequently reconsidered in 1996 by an MSBA Special Professionalism Task Force, that the Court of Appeals require all Maryland attorneys to attend a professionalism course; that proposal is pending before the Court of Appeals.

The MSBA also has created an aspirational Codes of Civility for Maryland attorneys and judges. The two voluntary sets of principles, one each for the bar and the bench, were approved by the MSBA in 1997. The Code of Civility is intended to promote professionalism, thereby enhancing the reputation of lawyers.

The MSBA features a column written by Bar Counsel, Melvin Hirshman, in its bi-monthly Maryland Bar Journal . In his column, Mr. Hirshman provides insights and practical advice from Bar Counsel's perspective. The Maryland Bar Journal also contains an ethics docket prepared by the MSBA Committee on Ethics.

Local bar associations have been established in the various Maryland counties and Baltimore City. Several of these organizations maintain committees on ethics, professional responsibility, lawyer disabilities and/or dispute resolution. By way of example, the Prince George's County, Montgomery County, Baltimore County and Baltimore City Bar Associations sponsor fee dispute resolution programs whereby an attorney or client may have a fee dispute arbitrated. [See Section 1.5:250.]

The MSBA compiles helpful reference material on lawyers in its "Maryland Lawyers Manual". In it, the MSBA publishes a list of the local bar associations (as well as the specialty bar associations) in Maryland. The "Maryland Lawyers' Manual" also contains court, lawyer and governmental agency listings. To obtain a copy of the manual or for more information regarding bar association programs, contact MSBA headquarters:

   Maryland State Bar Association
   Maryland Bar Center
   520 West Fayette Street
   Baltimore, Maryland 21201, 410-685-7878.

0.2:230      Disciplinary Agency

The Attorney Grievance Commission of Maryland is the primary controlling body for attorney discipline in the state. Created in 1975 by the Court of Appeals, it is charged with the administration of attorney discipline and the supervision of the inactive status of attorneys. MD Rule 16-702(a). Eight attorneys and two non-lawyers, appointed by the Court of Appeals, serve on the Attorney Grievance Commission. MD Rule 16-702(b). As a condition to practicing law in the state, Maryland lawyers pay an annual assessment ($65.00 as of 1998) to support the Commission's operations. MD Rule 16-602.

A Review Board and Inquiry Committee operate within this peer review system to facilitate the investigative functions of the Commission. MD Rule 16-705. Bar Counsel, appointed by the Attorney Grievance Commission, investigates alleged lawyer misconduct and reinstatement requests. Bar Counsel also prosecutes in disciplinary proceedings. MD Rule 16-704(b)(ii).

In the fiscal year ending June 30, 1998, the Attorney Grievance Commission received 1,929 complaints, a 10 % decrease from the prior year, despite a 1998 increase in active practicing Maryland attorneys (27,234) compared to 1997 (26,278). Attorney Grievance Comm'n, 23rd Annual Report (1998). Of the 527 grievances that were docketed in fiscal 1998, almost 20% (103) arose from personal injury/workers' compensation practice, with family law (85), civil litigation (66), criminal (58), and probate (45) being the other leading practice areas. Two major areas of investigation for violations of the Rules of Professional Conduct were lack of diligence or communication (23.91%) and lack of competent representation (17.46%); dishonesty, fraud, deceit or misrepresentation constituted the area of Rule violations investigated in approximately 10% of the docketed files. Id. In the same time period, some form of discipline was imposed in 106 cases, including 19 disbarments and 31 suspensions. Id. It is worth noting that failure to respond to the Attorney Grievance Commission formed the basis for disciplinary action in five cases, id.; the Court of Appeals has made it clear that failure to respond to or cooperate with the disciplinary agency is sanctionable conduct. Attorney Grievance Comm'n v. Milliken, 348 Md. 486, 519-20 (1998), and see Attorney Grievance Comm'n v. Hallmon, 343 Md. 390, 408 (1996) [see also 8.1:300].

A list of attorneys subject to disciplinary action in Maryland appears in the Attorney Grievance Commission Annual Report. See, Attorney Grievance Comm'n, 23rd Annual Report. For a copy of the Attorney Grievance Commission Annual Report or for other information from the disciplinary agency, the Attorney Grievance Commission may be contacted as follows:

   Melvin Hirshman, Esquire, Bar Counsel
   Attorney Grievance Commission of Maryland
   100 Community Place, Suite 3301
   Crownsville, Maryland 21032
   410-514-7051 or 1-800-492-1660.

0.2:240      Disciplinary Process

The primary process for disciplinary review of attorneys in Maryland is detailed in Maryland Rules 16-701 through 16-718. This process is summarized below with reference to the roles of the various participants in the disciplinary system.

Bar Counsel. Bar Counsel must record and investigate every complaint of attorney misconduct or incompetence. MD Rule 16-706(a). Bar Counsel may thereafter 1) dismiss the complaint upon approval from the Inquiry Committee chairman or a designee with or without a warning; 2) issue a written reprimand; 3) refer the matter to an Inquiry Panel; or 4) refer the matter to the Review Board under certain narrow circumstances. Id. A reprimanded attorney may request that charges be filed in lieu of the reprimand. MD Rule 16-706(a)(3).

(An amendment to the Maryland Rules is under consideration that would provide Bar Counsel with express authority to dismiss non-docketed complaints without prior approval of the Inquiry Committee Chair. The proposed Maryland Rule change is designed to clarify the existing policy, established by the Attorney Grievance Commission in 1975 in keeping with the ABA Model Rules of Disciplinary Enforcement, regarding the handling of complaints where there is clearly no misconduct or incompetence involved. The Rules Committee is also considering a proposed rule change that would allow Bar Counsel to enter a probation agreement based on a pre-agreed statement of facts that would become binding on the attorney in the event of a default on the terms of the agreement. Such an agreement at the early stage of the investigation would give Bar Counsel more discretion in addressing misconduct related to disabilities such as alcoholism. For the status of these proposed Maryland Rule changes, contact the Rules Committee. [See Section 0.2:200 for Rules Committee contact information.])

In addition to Bar Counsel's other duties, Bar Counsel may request the appointment of a conservator where an attorney is determined to be incapable of conducting his/her affairs. MD Rule 16-717. The Court of Appeals may appoint Bar Counsel or another active attorney to protect the interests of the clients of an attorney who is not capable or not available to do so. Id. An American Bar Association evaluation team that recently reviewed the disciplinary system in Maryland has recommended removing the conservatorship duty from Bar Counsel because of the significant drain on resources. See Attorney Grievance Comm'n, 23rd Annual Report (1998).

Bar Counsel is Melvin Hirshman, who has served in that position for 17 years. His office includes a staff of eight lawyers and seven investigators who investigate, evaluate and prosecute complaints. [See also Section 0.2:230 for contact information on Bar Counsel.]

Inquiry Panel. An Inquiry Panel is made up of at least three members of the Inquiry Committee. At least one member appointed to each panel must be a non-attorney. MD Rule 16-706(c), MD Rule 16-706(d)(2). The Attorney Grievance Commission sets the appropriate size for the Inquiry Committee based on its determination of the number necessary to handle the current level of Inquiry Panel proceedings. (As of 1997, there were 387 attorneys and 138 public members on the Committee.) Two-thirds of the membership must be attorneys, appointed by the local bar associations, and the remaining one-third are non-attorneys whose appointments are made by the Attorney Grievance Commission based on recommendations from the bar associations and general public. MD Rule 16-705(c)(1). An appropriate geographical distribution is determined by the Attorney Grievance Commission. Id. The Inquiry Committee members have three year terms subject to reappointment. MD Rule 16- 705(c)(2).

A complaint that is not dismissed will be referred to an Inquiry Panel unless the attorney and Bar Counsel waive the proceeding in writing or there has been a final criminal or disciplinary adjudication. MD Rule 16-706(b). If the parties waive the Inquiry Panel proceeding and Bar Counsel recommends discipline, Bar Counsel must forward his recommendation for discipline and his file to the Review Board. MD Rule 16-706(b)(3). Once the parties have confirmed the waiver of the Inquiry Panel proceeding in writing, good cause must be shown to obtain Review Board approval of a request to withdraw the waiver. MD Rule 16-706(b)(2).

Inquiry Panel proceedings often are compared to grand jury proceedings, being investigatory in nature, and therefore informality and irregularities in the proceedings generally do not constitute denials of due process, assuming basic notice and the opportunity to provide a defense have been afforded the attorney. Attorney Grievance Comm'n v. Garland, 345 Md. 383 (1997). Formal Maryland Rules of Evidence do not apply. MD Rule 16-706(d)(1). Attorney Grievance Comm'n v. Harris, 310 Md. 197 (1987), cert. denied, 484 U.S. 1062, 108 S. Ct. 1020, 98 L. Ed. 2d 985 (1988); Attorney Grievance Comm'n v. Stewart, 285 Md. 251, cert. denied, 444 U.S. 845, 100 S. Ct. 89, 62 L. Ed. 2d 58 (1979).

Unless the complaint has been dismissed or the responding attorney cannot be located after reasonable efforts, the Inquiry Panel will hold an evidentiary hearing, transcribed by a court reporter. See MD Rule 16-706(d). The Inquiry Panel, at the request of Bar Counsel or the responding attorney or on its own, may issue subpoenas for witnesses and/or documents, but subpoenas shall not divulge the name of the attorney against whom the complaint has been made. MD Rule 16-706(d)(3)(c). An attorney may be compelled to attend or produce documents at an Inquiry Panel proceeding by issuance of a certified letter in lieu of a subpoena. MD Rule 16-706(d)(3)(d). Depositions may be taken and offered as evidence in the Inquiry Panel proceedings if the witness is unable to attend due to a disability or is beyond the subpoena power of the jurisdiction in which the Inquiry Panel is sitting. MD Rule 16-706(d)(3)(b). Enforcement of subpoenas and compulsion to testify may be sought through the court issuance of an attachment or citation for contempt. MD Rule 16-706(d)(3)(e).

Absent dismissal of a complaint prior to a hearing, an Inquiry Panel must make one of the following three recommendations: 1) dismissal of the complaint; 2) reprimand of the attorney; or 3) the filing of charges against the attorney. MD Rule 16-706(d)(4)(a). A recommendation of dismissal must be in writing. Dismissal may be recommended either unanimously or without unanimity and the subsequent course of proceedings will depend on whether the recommendation is unanimous or not. A unanimous recommendation terminates the proceedings against the attorney, unless (a) the Panel, because the attorney's misconduct exists but does not warrant discipline, causes Bar Counsel to issue a warning (non-public) to the attorney, or (b) Bar Counsel does not believe dismissal is warranted and consequently transmits, with the approval of the Attorney Grievance Commission, the Inquiry Panel's recommendation, together with Bar Counsel's position, to the Review Board. MD Rule 16-706(d)(4)(c). In the case of a non-unanimous recommendation of dismissal, the Inquiry Panel's written reasons and all evidence (including any minority report) are filed with Bar Counsel who transmits the material to the Review Board. MD Rule 16-706(d)(4)(d).

Similarly, an Inquiry Panel's recommendation of reprimand or charges must be accompanied by a statement of the "basis therefor." Id. This submission, and all evidence taken by the Panel, are filed with Bar Counsel who, in turn, transmits the materials to the Review Board. Id.

Review Board. The Review Board is composed of 15 attorneys recommended by the Board of Governors of the Maryland State Bar Association and three non-lawyers appointed by the Attorney Grievance Commission after soliciting recommendations from the Maryland State Bar Association and the general public. MD Rule 16-705(d). Each member of the geographically diverse Review Board sits for a single three-year term. Id.

The Review Board reviews recommendations for reprimands, non-unanimous Inquiry Panel dismissal recommendations, and Inquiry Panel recommendations for the filing of charges against an attorney. MD Rule 16-707(b). The Review Board has the discretion to hear oral argument. Id. A majority of the board constitutes a quorum for action; the Board acts if there is "[t]he concurrence of not less than a majority of the members present." Md Rule 16-707(a).

If a matter comes before the Review Board following an Inquiry Panel hearing or a waiver of the hearing, then the Review Board may: 1) approve, reject or modify a recommendation; 2) remand for further proceedings; or 3) dismiss a complaint. MD Rule 16-706(b). If the Review Board is acting on Bar Counsel's recommendation of a reprimand, it may 1) approve the recommendation; 2) remand the matter for further proceedings; 3) direct that charges be filed (if the Inquiry Panel proceedings were waived); or 4) dismiss the complaint. Id. Otherwise, the Review Board may only remand the case for a hearing before an Inquiry Panel or dismiss the complaint. Id. If the Review Board reprimands an attorney based on Inquiry Panel findings, an attorney may make a written request ,within 15 days of the date of service of the reprimand, that charges be filed. MD Rule 16-707(c). In such case, if the Review Board does not direct Bar Counsel to file charges, the Review Board must withdraw the reprimand and dismiss the complaint against the attorney. Id.

The Maryland Rules Committee is considering a proposal to change the Maryland Rules to provide for Review Board reviews only upon the request of an Inquiry Panel member or Bar Counsel, in order to expedite the disciplinary process. For the status of this proposed rule change, contact the Rules Committee. [See Section 0.2:200 for Rules Committee contact information.]

The Court of Appeals of Maryland. Charges against an attorney are filed on behalf of the Attorney Grievance Commission by Bar Counsel at the direction of the Review Board in the Court of Appeals of Maryland ("Court of Appeals"). MD Rule 16-709(a) and (b). Once charges are filed, the Court of Appeals "may," and in practice does, refer the matter to a circuit court judge for hearing. MD Rule 16-709(b). The charges must be specifically delineated in writing. MD Rule 16-709(c). Except for a motion to transfer the charges to another circuit court, all subsequent pleadings, discovery and applicable Maryland rules of law, evidence and procedure are governed by the Maryland Rules applicable to civil proceedings. MD Rules 16-709(e), 16-710.

In a hearing of charges against an attorney, conviction of a crime or final adjudication of misconduct by a judicial tribunal (or a disciplinary agency directed to do so by a judicial tribunal) is considered conclusive proof of that criminal act or misconduct. MD Rule 16-710(e). A guilty plea or a plea of nolo contendere followed by a fine or sentence fall within the definition of a conviction of a criminal act under the disciplinary rules. MD Rule 16-710(e)(1). However, the attorney subject to disciplinary charges nonetheless may argue that discipline should not be imposed as a result of the crime or misconduct. Agnew v. State, 51 Md. App. 614 (1982); Attorney Grievance Comm'n v. Brewster, 280 Md. 473 (1977). [See Section 0.2:245 and 8.4:300 for further discussion of the implications of criminal convictions.]

Following the hearing of the disciplinary charges, the record, including the required findings of fact and conclusions of law prepared by the trial judge, is transmitted to the Court of Appeals. MD Rule 16-711. The parties may then file exceptions to the findings and conclusions and make recommendations regarding disciplinary sanctions. MD Rule 16-711(b)(2). The Court of Appeals must hear oral argument on exceptions. MD Rule 16-711(b)(3). A circuit court judge's findings of fact will not be disturbed on review unless clearly erroneous. Attorney Grievance Comm'n v. Drew, 341, Md. 139, 149 (1996); Attorney Grievance Comm'n v. Kahn, 290 Md. 654 (1981).

Following oral argument, the Court of Appeals will take final action on the complaint. It may order 1) disbarment, 2) suspension (with or without conditions such as restitution, substance abuse, financial or practice monitoring), 3) reprimand, 4) imposition of inactive status, 5) dismissal of charges, or 6) a remand for further proceedings (after which the Court of Appeals will entertain further exceptions and recommendations and take final action). MD Rule 16-711(b)(4). The decision of the Court of Appeals is final at this point and is not subject to further review. MD Rule 16-711(b)(5). See also Maryland State Bar Ass'n v. Boone, 255 Md. 420 (1969).

In Maryland, disciplinary proceedings through the Inquiry Panel and Review Board levels are generally confidential. MD Rule 16-708(a). With certain exceptions, the record of complaints, investigations, proceedings and reprimands will be treated as private and confidential until charges are filed in the Court of Appeals. Id. Once charges are filed, the proceedings become public, but the records of the Attorney Grievance Commission are not subject to public disclosure under the Maryland Public Information Act. Attorney Grievance Comm'n v. A.S. Abell Co., 294 Md. 680 (1982). Debate continues in the state over the competing interests in protecting innocent attorneys' reputations from disclosure of complaints that may be meritless, on the one hand, and providing the public with early warning of misconduct and greater knowledge of how the system is working, on the other. To date, the Maryland Rules Committee has not recommended broader or earlier public disclosure.

To resign from the practice of law in Maryland, an attorney must submit a writing, stating reasons for the requested resignation, to the Court of Appeals, but no resignation is effective until the Court of Appeals accepts it by formal order. MD Rule 16-712(c). An application to resign will not allow an attorney to avoid disciplinary proceedings. MD Rule 16-712(a). Consequently, while an attorney is the subject of an investigation or disciplinary proceedings, Bar Counsel must recommend acceptance to the Court of Appeals. The acceptance of that attorney's consent to disbarment occurs only after that attorney submits an affidavit that confirms the voluntary nature of the attorney's consent and awareness of the ongoing investigation or proceedings and acknowledges an inability to successfully defend charges that may arise from the investigation or proceedings. MD Rule 16-712(d)(2).

An attorney who is suspended, disbarred, placed on inactive status or has been approved to resign may not practice law in Maryland for the relevant period. MD Rule 16-713. A suspended attorney may once again practice law in the state only after that attorney has verified compliance with the terms of the suspension to Bar Counsel and Bar Counsel has given notice to the Court of Appeals of acceptance. Id. The clerk of the Court of Appeals maintains a list of attorneys who are excluded from practicing law in Maryland. MD Rule 16-713(b). This list is distributed to the Maryland Board of Law Examiners and the clerks of the various courts in Maryland. (Information regarding public disciplinary action taken against Maryland attorneys also is provided to the National Discipline Data Bank.) Clerks of the federal courts refer to the excluded attorney list when receiving an application for federal bar membership from a Maryland attorney; an applicant whose name appears on the excluded attorney list will not be approved for federal bar membership. However, at the moment, there is no automatic reciprocal suspension/disbarment procedure set forth in the Maryland Rules in a situation where an attorney has been sanctioned in another jurisdiction.

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude [see also Section 8.4:300]

The title of this section is somewhat misleading. The "crime of moral turpitude" concept was scrapped in Maryland in 1978. The reasoning of the Court of Appeals was detailed in Attorney Grievance Comm'n v. Protokowicz, 326 Md. 714, 718 (1992).

Convictions of certain crimes lead to Maryland disciplinary proceedings. Conviction in a Maryland court of a felony, conviction in a federal court of any felony (unless the same crime is not a felony in Maryland), and conviction "in any other judicial tribunal" of a crime that would be a felony in Maryland or "of any other crime punishable by imprisonment for three years or more" cause the filing of charges. MD Rule 16-716(a). Regardless of the pendency of an appeal, Bar Counsel must file charges if "the conviction results from a plea of guilty or of nolo contendere or from a verdict after trial" and a "certified copy of the judgment" is prima facie evidence of the conviction. MD Rule 16-716(a)(2). Upon receipt of the charges, the Court of Appeals issues a show cause order asking why an attorney should not be suspended, pending further proceedings. MD Rule 16-716(b). Suspension is clearly discretionary pending resolution of the criminal appeal. See Protokowicz, 326 Md. at 718; Attorney Grievance Comm'n v. Klauber, 283 Md. 597, 599 (1978). Indeed, the Court of Appeals has refused to order suspension pending resolution of an appeal of a conviction for possession of cocaine, Attorney Grievance Commission v. Gilbert, _____ Md. ______, 717 A.2d 383, (Md. 1998), or of a conviction for assault and battery, Attorney Grievance Commission v. Brown, 347 Md. 152 (1997).

Under Maryland Rule 8.4(b), an attorney commits disciplinary misconduct by committing a criminal act that reflects on an attorney's character. Maryland Rule 8.4(b) refers to character traits, not crimes. Attorney Grievance Comm'n v. Post, 350 Md. 85, 97 (1998). Neither a conviction nor "moral turpitude" is the relevant matter. [For a discussion of the disciplinary impact of the commission of a crime, See Section 8.4:300.]

0.2:250      Sanctions in Judicial Proceedings

The Court of Appeals fashioned Maryland Rule 1-341 to protect civil litigants from certain types of improper conduct by an opposing party or attorney. As reflected in the title of Maryland Rule 1-341, "Bad Faith -- Unjustified Proceeding," in any civil action, a court may require a party, that party's attorney, or both to pay reasonable expenses, including attorney's fees, incurred by the adverse party if a proceeding was maintained or defended in bad faith or without substantial justification. This Rule applies to all civil proceedings in all Maryland courts, including the appellate courts. Allnut v. Comptroller of the Treasury, 77 Md. App. 424 (1988), cert. denied, 315 Md. 307 (1989). It is applicable to all attorneys practicing in the Maryland courts, including out-of-state attorneys who are specially appearing pro hac vice. Id.; Watson v. Watson, 73 Md. App. 483 (1988). However, it is not applicable to attorneys who fail to appear for court-ordered mediation sessions, Tobin v. Marriott Hotels, Inc., 111 Md. App. 566 (1996), or to conduct in federal court proceedings, Major v. First Virginia Bank, 97 Md. App. 520, cert. denied, 331 Md. 480 (1993), or to proceedings before the Health Claims Arbitration Office, Newman v. Reilly, 314 Md. 364 (1988).

The Maryland Rule is not a sanction like Federal Rule 11. Rather, it is intended only to place a party where that party would have been, but for the improper conduct of another party and/or that party's attorney. Seney v. Seney, 97 Md. App. 544 (1993). Therefore, expenses such as attorney's fees must actually have been incurred by the innocent party to be assessed against the improperly acting attorney (and/or the attorney's client). Id. Where the innocent party has a contingent fee arrangement with his/her attorney, that innocent party may not be awarded expenses in the form of attorney's fees under Maryland Rule 1-341. Id. To support an assessment of costs under Maryland Rule 1-341, the court must make specific findings of 1) bad faith or conduct without substantial justification and 2) conduct that merits the assessment of costs. Id. Assuming those findings, the assessment of Maryland Rule 1-341 costs will be affirmed on appeal absent an abuse of discretion by the lower court or tribunal. Id. There is no time limit for filing a motion under Maryland Rule 1-341. Litty v. Becker, 104 Md. App. 370, cert. denied, 339 Md. 641 (1995).

Among recent appellate decisions affirming the imposition of sanctions under MD Rule 1-341 is the case of Inlet Associates v. Harrison Inn Inlet, Inc., 324 Md. 254 (1991). In Inlet Associates, the Court of Appeals set forth the standard of appellate review for the award of Rule 1-341 sanctions, namely that two findings must be made by the trial court: 1) that a proceeding was maintained or defended in bad faith and/or without substantial justification (which finding will be affirmed on appeal unless clearly erroneous); and 2) that the bad faith or lack of substantial justification justifies the assessment of costs (which finding will be affirmed on appeal unless it is determined to have been an abuse of discretion). 324 Md. 254. The Court of Appeals, having accepted certiorari to address the standard of review, affirmed the award of more than $15,000 against the attorney, his law firm and his clients for maintaining a non-meritorious action against another attorney in the underlying abuse of process case. Id. Other cases affirming Maryland Rule 1-341 awards against attorneys include Major, 97 Md. App. 520 ($25,000 award against attorney for filing a suit without substantial justification), and Jenkins v. Cameron & Hornbostel, 91 Md. App. 316 (1992) ($3,500 sanction against attorney in divorce case for intentional violation of protective order and abusive discovery tactics).

In addition to Maryland Rule 1-341 sanctions, penalties may be imposed against an attorney (as well as the attorney's client) for discovery abuses in circuit court proceedings under Maryland Rule 2-433(a). These sanctions may be imposed for failures of discovery. Under this Rule, after an opportunity for a hearing, the court may require a failing party or "attorney advising the failure to act" or both to pay reasonable expenses, including attorney's fees, caused by the failure unless the failure is "substantially justified" or the award would be "unjust." Maryland Rule 2-433(a). This discovery sanction is discretionary and may be imposed by the court sua sponte. Broadwater v. Arch, 267 Md. 329 (1972). Maryland Rule 3-421(h), covering sanctions for failure to respond to discovery in district court proceedings does not expressly authorize the imposition of sanctions against attorneys engaged in such discovery failures.)

The Maryland Rules governing contempt (MD Rules 15-201 to 15-208) also may be applied by the Maryland judiciary to impose sanctions upon attorneys for disobedience to the court. See, e.g., Murphy v. State, 46 Md. App. 138, 416 A.2d 748 (1980). In particular, an unjustified failure to attend a specially-set court date, without sufficient notice to the court, may subject an attorney to a judicially-imposed sanction for direct criminal contempt. Id. See also Kandel v. State, 252 Md. 668, 250 A.2d 853 (1969); but see Jones v. State, 61 Md. App. 94, 484 A.2d 1050 (1984) (simple failure to appear due to confusion over proper courthouse not sufficiently insulting or disruptive to court to justify contempt imposition). Further, a lawyer who continues to practice law after being decertified for failing to pay the annual Client Security Trust Fund assessment is subject to court action including contempt proceedings. MD Rule 16-811 (g)(4)(ii). [See 1.15:120 regarding The Client Security Trust Fund.]

Under Canon 3B(3) of the Maryland Code of Judicial Conduct, a Maryland judge "should take or initiate appropriate corrective measures" against an attorney (or judge) for unprofessional conduct. Maryland Rule 16-813. The comment to Canon 3B(3) indicates that the "[c]orrective measures may include a private reprimand or reporting misconduct to the disciplinary body or a bar association counseling program." In using the term "corrective measures," it was the Rules Committee's intention to give judges greater latitude to respond to attorney misconduct than the directive to take "disciplinary measures" found in the ABA counterpart. See MD Rule 6-813, Canon 3B and compare ABA Model Code of Judicial Conduct, Canon 3B(3). The Maryland Code of Conduct for Judicial Appointees contains a provision that parallels the Maryland Code of Judicial Conduct in this respect. MD Rule 6- 814, Canon 3B(3).

0.2:260      Criminal and Civil Liability

This section has not yet been completed.

0.2:270      Federal Courts and Agencies

The United States District Court for the District of Maryland ("U.S. District Court") is composed of a Northern and a Southern Division. The District of Maryland is within the Fourth Circuit. The Court of Appeals for the Fourth Circuit regularly sits in Richmond, Virginia (although its members hear appellate arguments in Baltimore, Maryland several times each year). Attorney conduct in the U.S. District Court is governed by Rules of the United States District Court for the District of Maryland ("Local Rules") created pursuant to Federal Rule of Civil Procedure (Fed. R. Civ. P.) 83 and Federal Rule of Criminal Procedure (Fed. R. Crim. P.) 57. See, e.g., Local Rules 703-705. Attorney conduct in the Fourth Circuit is governed by Federal Rule of Appellate Procedure (Fed. R. App. P.) 46 and Local Rule of the Fourth Circuit (Local App. R.) 46(g), promulgated by the Fourth Circuit pursuant to the rule-making authority conferred by Fed. R. App. P. 47. Attorneys practicing before the U.S. District Court (or in any way "participating in" proceedings before that Court) are subject to the disciplinary authority of the U.S. District Court. Local Rule 703.

Generally, allegations of attorney misconduct will be referred to the U.S. District Court's Disciplinary Committee, which in turn will screen and, if appropriate, refer the matter for investigation to Maryland Bar Counsel or to a court-appointed attorney. See Local Rule 705.1(a). If the Disciplinary Committee recommends formal proceedings as a result of the investigation, the U.S. District Court will issue a show cause order and will then proceed to a hearing. An attorney subject to a pending disciplinary investigation or prosecution has the right to a publicly-recorded consent to disbarment upon acknowledging the operative facts, the absence of an effective defense and the voluntary nature of the decision. Local Rule 705.1(f). Disciplinary proceedings in this forum are confidential until the issuance of an opinion or order disbarring, or suspending an attorney or imposing other discipline that is to be placed on the public record. Local Rule 705(1)(e). Conviction of a "serious crime" (any felony and certain lesser crimes) will result in immediate suspension, subject to subsequent alternate disposition after a disciplinary proceeding. Local Rule 705(2). The same is generally true for an attorney who has been disciplined in another jurisdiction. See Local Rule 705(3).

Imposition of sanctions under Fed. R. Civ. P. 11 was discussed and applied in Coates v. United Parcel Services, Inc., 933 F. Supp. 497 (D. Md. 1996). The Fourth Circuit has consistently held that "the decision to impose sanctions under Rule 11" is within the "sound discretion" of the trial court and will be "reversed only for a clear abuse of discretion." Ost- West-Handel Bruno Bischofff GMBH v. Project Asia Lines, 1998 U.S. App. LEXIS 28247, at *17 (4th Cir. 1998); Cohen v. Virginia Elec. & Power Co., 788 F.2d 247, 248 (4th Cir. 1996).

0.2:280      Ethics Rules Applied in Federal Courts in Maryland

The local rule is straightforward and not (yet) subject to debate: the United States District Court for the District of Maryland ("U.S. District Court") will apply the Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals. Rules of United States District Court for the District of Maryland Rule 704. See Davidson Supply Co. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997). The proposed Federal Rules of Professional Conduct have not yet been the subject of substantial discussion within the federal bar in Maryland. On the other hand, the effect of the Maryland State Bar Association ("MSBA") Ethics Opinions has been the subject of conflicting interpretation in the federal courts.

In the state courts in Maryland, it is well settled that MSBA Ethics Opinions are advisory and therefore not binding on the courts. Attorney Grievance Comm'n v. Gregory, 311 Md. 522 (1988). While one such "advisory opinion" of the State Bar was cited approvingly and applied to determine an issue raised on appeal in Atlantic Leasing & Financial Inc. v. IPM Technology, Inc., 885 F.2d 188, 195 (4th Cir. 1989), an Ethics Opinion was given short shrift in Schatz v. Rosenberg, 943 F.2d 485, 492 (4th Cir. 1991) ("Courts have consistently refused to use ethical codes to define standards of civil liability for lawyers").

The disparate treatment afforded by the federal courts to the Maryland State Bar Association's Ethics Opinions is exemplified by the different weight given to those opinions by individual U.S. District Court Judges in considering, specifically, the constraints of Maryland Rule 4.2. That Rule prohibits a lawyer from communicating directly with a party who is represented by counsel but does not expressly address the propriety of direct contact with existing and former employees of a corporate adversary. The question of who constitutes a corporate party for purposes of Rule 4.2 has come before the U.S. District Court on several occasions. The court has not followed a unitary path in determining issues under this Rule, despite the existence of MSBA opinions treating the subject.

In Sharpe v. Stulman Enterprises, 12 F. Supp. 2d 502 (D. Md. 1998), Judge Legg found no violation of Maryland Rule 4.2 by an attorney's contact with rather low level former employees of the opposing party. In doing so, Judge Legg discussed each of the preceding cases in the district. In earlier cases, Judge Davis (in Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D. Md. 1997)) and Judge Messitte (in Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996)), had ruled otherwise, rejecting the state bar association's Ethics Opinion analysis. Judge Smalkin, however, in Davidson Suppy Co. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997) followed the interpretation put forth by the Maryland State Bar Association and refused to follow decisions by Judges Messitte and Davis, 986 F. Supp. at 958. [See Section 0.2:220 for a discussion of MSBA Ethics Opinions.]

0.3:300   Organization of This Library and the Model Rules

This section has not yet been completed.

0.4:400   Abbreviations, References and Terminology

0.4:410      "Belief" or "Believe"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:420      "Consults" or "Consultation"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:430      "Firm" or "Law Firm"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:440      "Fraud"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:450      "Knowingly," "Known," or "Knows"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:460      "Partner"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:470      "Reasonable" or "Reasonably"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:480      "Reasonable belief" or "Reasonably believes"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:490      "Substantial"

The Maryland Rules definition of this term identical to the Model Rules definition.

0.4:500   Additional Definitions in Maryland

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