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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.
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Maryland Legal Ethics
Maryland Rule 8.1 and MR 8.1 are substantively identical, except that Maryland Rule 8.1 also expressly applies to applications for reinstatement to the bar. The comment sections to Maryland Rule 8.1 and MR 8.1 (MD Rule 8.1, cmt.; MR Rule 8.1, cmt.) are also substantively identical, except that the comment to Maryland Rule 8.1 reflects that Maryland Rule 8.1 also applies to applications for reinstatement.
DR 1-101(A) provides that a lawyer is "subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar." DR 1-101(B) provides that a lawyer "shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute." With respect to paragraph (b), DR 1-102(A)(5) provides that a lawyer shall not engage in "conduct that is prejudicial to the administration of justice."
Admission to the Bar of Maryland is under the jurisdiction of the Court of Appeals, which appoints the State Board of Law Examiners. Admission is regulated by the Rules Governing Admission to the Bar promulgated by the Court of Appeals, the legislative enactments codified in the "Lawyer" subtitle; i.e., Md. Code Ann., Bus. Occ. & Prof. ¤ 10-201 et seq., and the Board Rules adopted by the State Board of Law Examiners.
Bar admissions in Maryland are administered under the State Board of Law Examiners, which was created by an enactment of the Maryland General Assembly in 1898. The present authorization for the Board and its general powers are set forth in Md. Code Ann., Bus. Occ. & Prof. ¤ 10-201, et. seq. and the Rules Governing Admission to the Bar promulgated by the Court of Appeals. The Board is composed of seven lawyers appointed to five year terms by the Court of Appeals.
The State Board of Law Examiners may be contacted through Bedford T. Bentley, Jr., Secretary, State Board of Law Examiners, People's Resource Center, Room 1210, 100 Community Place, Crownsville, Maryland 21032-2026; telephone: (410) 514-7044.
The State Board of Law Examiners administers bar examinations twice annually during the last weeks of February and July. Each exam occupies two days for a total of between nine and twelve hours of writing time.
In order to sit for the bar examination, a person "either shall have graduated or shall be unqualifiably eligible for graduation from a law school" accredited by the American Bar Association. Rules Governing Admission to the Bar, Rule 4.
According to Maryland Rule 7(b), the bar examination "shall be designed to test the examinee's knowledge of legal principles in the subjects on which examined and the examinee's ability to recognize, analyze, and intelligibly discuss legal problems and to apply that knowledge in reasoning their solution." According to Board Rule 3, the subject matter of the Maryland Bar Examination shall include the following subjects: agency, business associations, commercial transactions, constitutional law, contracts, criminal law and procedure, evidence, family law, Maryland civil procedure, professional conduct, property, and torts. Since 1972, the State Board of Law Examiners has used the multi-state bar examination ("MBE") as part of the examination. The MBE usually is given on the second day of the examination. The first day usually is devoted to the traditional essay examination, prepared and graded by the State Board of Law Examiners. The grading requirements are set out in Board Rule 4.
In addition to passing the exam, each applicant bears the burden of proving to the character committee of the Board, the Board, and the Court of Appeals the applicant's good moral character and fitness for the practice of law. Rules Governing Admission to the Bar, Rule 5(a).
Rule 13 of the Rules Governing Admission to the Bar (together with Md. Code Ann., Bus. Occ. & Prof. ¤ 10-210) regulates the admission of out-of-state attorneys. Admission on motion occurs only when a qualified out-of-state attorney "successfully" completes a special attorney examination prescribed by the rule. To be eligible for this admission on motion, the person shall have the requisite professional experience, i.e., practice for "(a) a total of ten years, or (b) at least five of the ten years immediately preceding the filing of a petition for admission." Rules Governing Admission to the Bar, Rule 13(d). The required professional experience may be as (1) a practitioner of law, (2) a teacher of law at a law school approved by the American Bar Association, (3) a judge of a court of record in a state, or (4) "a combination thereof." A person with requisite experience may be admitted under Rule 13(a) (Rules Governing Admission to the Bar, Rule 13(a)) if, at the time of the petition, the person is a member of a bar of a state, has passed a written bar examination in a state, has the professional experience required by the rule, successfully completes the attorney examination, and possesses a good moral character and fitness necessary for the practice of law. The subject matter of the out-of-state attorneys examination is set forth in Board Rule 5. It relates to the Maryland Rules of Procedure governing practice and procedure in civil and criminal cases in all the courts of the state of Maryland, the Rules of Professional Conduct and the provisions of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland. The attorneys exam consists of three hours of writing time.
A petition for admission by an out-of-state attorney "shall be filed at least sixty days before the scheduled attorney examination that the Petitioner wishes to take." Rules Governing Admission to the Bar, Rule 13(h).
8.1:240 Admission Pro Hac Vice [see also 5.5:230]
Section 10-215 of the Maryland Annotated Code, Business Occupations and Professions Article and Rule 14 of the Rules Governing Admission to the Bar control admission for a single case or matter. An attorney admitted to the bar of another state who is employed by a party to a case in a court or before a unit of state government or a political subdivision may be admitted "in connection with the case for which special admission is granted." A form for the motion for special admission is included as Form RGAB- 20/M in the Appendix of Forms located in the Maryland Rules.
Intentionally false material statements in an application for admission to the bar are grounds for disbarment. Attorney Grievance Comm'n v. Joehl, 335 Md. 83, 97 (1994) (quoting ABA Standards for Improving Lawyer Sanctions (1992)). In Joehl, the Court of Appeals reaffirmed that it had "adopted the test of materiality stated in In re Howe, 257 N.W.2d 420, 422 (N.D. 1977) (a material omission is one that 'has the effect of inhibiting the efforts of the bar to determine an applicant's fitness to practice law.')." 335 Md. at 94. The material misstatements in Joehl included an attorney's testimony "that he had no knowledge of his [motor vehicle license] suspensions" as well as a false statement in his bar application [failure to report the suspension]. Id. at 91.
In disciplinary proceedings, it is not unusual to find an allegation of violation of Maryland Rule 8.1 included in the litany of charges against an attorney brought before the Court of Appeals. That court, however, has not slavishly found disciplinary violations. See Attorney Grievance Comm'n v. Adams, 349 Md. 86 (1998) (no intentional misrepresentations found); Attorney Grievance Comm'n v. Wills, 348 Md. 633 (1998) (misstatements at inquiry panel not material); Attorney Grievance Comm'n v. Webster, 348 Md. 662 (1998) (dilatory production of bank accounts eventually produced). Cf., Attorney Grievance Comm'n v. Sachse, 345 Md. 578 (1997). Indeed, the Court of Appeals has found that less than "cooperative and reasonable" responses to Bar Counsel's investigation of charges are not a violation of Rule 8.1(b) where the trial judge has refused to find a violation despite the presence of such charges. Attorney Grievance Comm'n v. Powell, 328 Md. 276, 298-9 (1992). But see Attorney Grievance Comm'n v. Manning, 318 Md. 697, 702 (1990) (total failure to respond to Bar Counsel's request for information was found to be a violation of Rule 8.1(b)); accord, Attorney Grievance Comm'n v. Werner, 315 Md. 172 (1989).
During an investigation of a complaint against an attorney, repeated misrepresentations to Bar Counsel and others about the whereabouts of a client's funds became one of the grounds for disbarment in Attorney Grievance Comm'n v. Hollis, 347 Md. 547, 560 (1997). In Attorney Grievance Comm'n v. Kenney, 339 Md. 578, 587 (1995), there was found a technical violation of Rule 8.1(b) by Respondent's "failure to timely respond to Bar Counsel's request for his escrow records and other information."
An attorney who refused to be interviewed by Assistant Bar Counsel was found to violate Rule 8.1(b) in Attorney Grievance Comm'n v. Hallmon, 343 Md. 390, 408 (1996). Such refusal is "sanctionable under Rule 8.1(b)" when the disciplinary inquiry relates either "to the conduct of the lawyer from whom the information is sought or . . . to the conduct of another lawyer." 343 Md. at 408. Indeed, failure to respond to "Bar Counsel's letters in any manner evidences" disrespect for the "attorney disciplinary process in this State," and has become among the grounds for disbarment. Attorney Grievance Comm'n v. Milliken, 348 Md. 486, 519-520 (1998). See also Attorney Grievance Comm'n v. Alison, 349 Md. 623, 640-642 (1998).
When an attorney at an Inquiry Panel and at the circuit court testifies in conflict with witnesses who are believed, the attorney's testimony may become the basis for "an additional finding" that the attorney was "deliberately untruthful" in derogation of Rule 8.1(a). Attorney Grievance Comm'n v. Goldsborough, 330 Md. 342, 355-6 (1993). In dissent, Judge (now Chief Judge) Bell strongly criticized using the attorney's conflicting testimony as ground for a finding of deliberate untruthfulness in the absence of any additional proof of "intentional lying." Id. at 368-372. Indeed, the dissent argued that the Rule 8.1 violation added "a separate . . . potentially cumulative sanction" that "impermissibly results in double punishment and is fundamentally unfair." Id. at 372-3. Despite the invitation of Bar Counsel, the hearing judge refused to find that an attorney had knowingly lied even though the judge credited complainant's evidence in Attorney Grievance Commission v. Protokowicz, 329 Md. 252, 260-62 (1993).
Maryland Rule 8.1(b) imposes a duty on an applicant for admission or reinstatement to the bar or a lawyer in connection with a bar admission application or in connection with a disciplinary matter to correct a misapprehension known to have arisen in the matter. No Maryland cases or Ethics Opinions address this duty.
An exception to the duty recited in 8.1:400 is the privilege of an attorney to maintain client confidence.
This section has not yet been completed.
Maryland Rule 8.2(a) and MR 8.2(a) are substantively identical. Maryland Rule 8.2(b) and MR 8.2(b) are substantially different in form, but not in substance. MR 8.2(b) provides that a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. Maryland Rule 8.2(b), on the other hand, specifically states what conduct is prohibited.
With regard to paragraph (a), DR 8-102(A) provides that a lawyer "shall not knowingly make false statements of fact concerning the qualifications of candidate for election or appointment to a judicial office." DR 8-102(B) provides that a lawyer "shall not knowingly make false accusations against a judge or other adjudicatory officer." With regard to paragraph (b), Maryland Rule 8.2(b) is the same as DR 8-103 of the Model Code in substance.
There are no reported Maryland cases or Ethics Opinions relating to this issue.
There are no reported Maryland cases or Ethics Opinions relating to this issue. However, additional requirements for judges and judicial appointees may be found in Maryland Rule 16-813 (Maryland Code of Judicial Conduct) and Maryland Rule 16-814 (Code of Conduct for Judicial Appointees).}
Maryland Rule 8.3(a) and (b) are substantively identical to MR 8.3(a) and (b). Maryland Rule 8.3(c) is substantially similar to MR 8.3(c), except that MR 8.3(c) expands the protection from disclosure to information "gained by a lawyer or judge while serving as a member of an approved lawyers assistance program to the extent that such information would be confidential if it were communicated subject to the attorney-client privilege." The comment sections to Maryland Rule 8.3 and MR 8.3 (MD Rule 8.3, cmt.; MR 8.3, cmt.) are substantively identical, except that Maryland does not include the fifth paragraph found in the comment to MR 8.3.
DR 1-103(A) provides that "[a] lawyer possessing unprivileged knowledge of a violation of [a Disciplinary Rule] shall report such knowledge to . . . [an] authority empowered to investigate or act upon such violation."
The Court of Appeals has not addressed Maryland Rule 8.3. Note, however, that in Attorney Grievance Commission v. Brennan, 350 Md. 489 (1998), the trial court found a violation of Maryland Rule 8.3; neither the Attorney Grievance Commission nor the Respondent excepted to this finding. The trial court found in Brennan that the attorney had not met the affirmative duty to report a suspended attorney's misrepresentation of his status to a client. 350 Md. at 496.
A number of Maryland State Bar Association Ethics Opinions have discussed the duty. MSBA Ethics Op. 91-34 (1991) provides historical context:
Prior to the enactment of the Rules of Professional Conduct, the comparative Disciplinary Rule required the reporting of any violation of a Disciplinary Rule. In the comment to MD Rule 8.3, it is recognized that a requirement to report any violation proved to be unenforceable. Therefore, the comment states that Maryland Rule 8.3 "limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent." It also indicates that "the term 'substantial' refers to the seriousness of the possible offense . . . .
The duty to report "requires that a lawyer have some reliable evidence which indicates a reasonable probability that a violation has occurred." MSBA Ethics Op. 89-36 (1989). Moreover, "the Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent, [recognizing] that a measure of judgment is required and the term 'substantial' refers to the seriousness of the possible offense." MSBA Ethics Op. 98-16 (1998).
Beyond these guides, there is little additional guidance. A hortatory reference to Maryland Rule 8.3 and an attorney's obligation under it appears in the context of an appeal from an ex parte child custody order. Magness v. Magness, 79 Md. App. 668, 684, cert. granted, appeal dismissed, 317 Md. 644 (1989). Some guidance, however, is found in a March 23, 1989 letter opinion in which, in discussing whether an alleged breach of a fee agreement was cause for reporting, the MSBA Committee on Ethics suggested that, if the breaching attorney "acted with intent to cheat the other party to the contract or intended not to perform a known legal duty," a mandatory duty to report would arise, while no report would be mandated if the alleged breach was "due to good faith disagreement." MSBA Ethics Op. 96-31 (1996) provides that a report of violation to the Attorney Grievance Commission fulfills the reporting obligation; there is no additional duty to "require" revelation of information to the offending lawyer's clients. Further, although a member of the bar may report misconduct of an out-of-state attorney to the governing body of the other state, there is no "consensus" on whether there is a duty to report the apparent violation to Maryland's disciplinary authority. MSBA Ethics Op. 98-3 (1988).
There are no reported Maryland cases or Ethics Opinions, other than a passing reference in Magness v. Magness, 79 Md. App. 668 (1989). Some guidance for dealing with judges "who are predisposed against a client's case" is found in Ricker v. Ricker, 114 Md. App. 583, 600 (1997).
There are no cases, but two MSBA Ethics Opinions provide guidance. MSBA Ethics Op. 89-46 (1989) absolved an attorney of the need to report information learned from a client when the client expressly requested that no complaint or report be filed. MBSA Ethics Op. 94-26 (1994) made clear that "the confidentiality rule," i.e. Maryland Rule 1.6, "is much broader" than the attorney/client evidentiary privilege so that, before a report of suspected serious wrongdoing is made, the reporter needs to "make a determination that the information obtained is not confidential pursuant to Maryland Rule 1.6 . . . ."
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
There is no direct counterpart to paragraph (f) in the Disciplinary Rules of the Model Code. EC 7-34 states in part that "[a] lawyer . . . is never justified in making a gift or a loan to a [judicial officer] except as permitted by . . . the Code of Judicial Conduct." EC 9-1 states that a lawyer "should promote public confidence in our [legal] system and in the legal profession."
A lawyer has been held to violate Maryland Rule 8.4(a) by failing to pay federal taxes. Attorney Grievance Comm'n v. Breschi, 340 Md. 590 (1995). Such failure, coupled with a host of other disciplinary violations, including "engaging in a course of conduct that gave rise to a conflict of interest with [a] client," was found to demonstrate a willful disregard for the law and the Rules of Professional Conduct in Attorney Grievance Commission v. Boyd, 333 Md. 298, 306 n.2, 322 (1994).
Further, assisting a suspended lawyer "in making a sham of the [previously disciplined lawyer's] suspension" led to a 90 day suspension in Attorney Grievance Commission v. Brennan, 350 Md. 489, 501-2 (1998).
Under Maryland Rule 8.4(b), an attorney commits professional misconduct upon commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness. As the Court of Appeals said in Attorney Grievance Comm'n v. Post, 350 Md. 85, 92 (1998), "there must be a violation of a criminal statute and that specific violation must adversely reflect on a lawyer's honesty, trustworthiness, or fitness as a lawyer." Discipline, however, can be imposed in the absence of a criminal conviction "if Bar Counsel proves the underlying conduct at the disciplinary hearing," Attorney Grievance Comm'n v. Garland, 345 Md. 383, 395 (1997); Attorney Grievance Comm'n v. Deutsch, 294 Md. 353, 366 (1982), by "clear and convincing evidence." Attorney Grievance Comm'n v. Proctor, 309 Md. 412, 418 (1987). Probation before judgment under ¤ 641 of Art. 27 of the Maryland Annotated Code, is no bar to discipline. Attorney Grievance Comm'n v. Hamby, 322 Md. 606 (1991).
Attorneys have been disbarred for various offenses: unlawful solicitation of money from an indigent client under the Criminal Justice Act, see Attorney Grievance Comm'n v. Willcher, 340 Md. 217 (1995); perjury and knowing tax fraud, see Attorney Grievance Comm'n v. Meisnere, 301 Md. 514 (1984); conspiracy to counterfeit, see Attorney Grievance Comm'n v. Molovinsky, 300 Md. 291 (1984); obtaining money under false pretenses and fraudulent misappropriation by a fiduciary,see Attorney Grievance Comm'n v. Andresen, 281 Md. 152 (1977); and sale of controlled dangerous drugs, absent compelling extenuating circumstances, see Attorney Grievance Comm'n v. McGonigle, 295 Md. 264 (1983).
In other disciplinary actions involving narcotics charges, the Court of Appeals has imposed the lesser penalty of suspension where the drug offender demonstrated rehabilitation efforts. Hamby, 322 Md. 606 (90 day suspension together with strict conditions for abstinence from drugs). But the court has stressed that drug violations merit discipline, with the sanction to be decided on a case-by-case basis with consideration to be given to "the nature of the controlled dangerous substance involved . . . and all other surrounding circumstances." Proctor, 309 Md. at 420 (one year suspension in marijuana case where there was "the absence of a finding of actual distribution").
Willful tax evasion "is a crime infested with fraud, deceit and dishonesty and will result in automatic disbarment absent clear and convincing evidence of a compelling reason to the contrary." Attorney Grievance Comm'n v. Casalino, 335 Md. 446, 452 (1994). Failure to pay income taxes has led to disbarment. See Attorney Grievance Comm'n v. Walman, 280 Md. 453 (1977). Failure to pay withholding taxes has been held a "violation of Maryland Rule 8.4(b)," but the sanction imposed was only a 30 day suspension in where the respondent was a person of good character, who gave "his clients good advice and served them well." See Post, 350 Md. at 100.
The Court of Appeals of Maryland has consistently stated:
It must always be remembered that a lawyer is an officer of the court. Any time a lawyer commits an act of dishonesty, fraud or deceit, the public loses confidence in the integrity of those officers and the system as a whole.
Attorney Grievance Comm'n v. Casalino, 335 Md. 446, 352 (1994) (citing Maryland State Bar Ass'n v. Agnew, 271 Md. 543, 549 (1974)). This judicial position is specifically codified as professional misconduct by Maryland Rule 8.4(c). Dishonesty or deceit is often charged in conjunction with allegations of other rule violations. See e.g., Attorney Grievance Comm'n v. Glenn, 341 Md. 448 (1996); and Attorney Grievance Comm'n v. Myers, 333 Md. 440 (1994). In Glenn, the Maryland Rule 8.4(c) violation, i.e., obliging clients' desire to minimize their income so as to maximize a tuition grant and thus not disbursing their funds held in escrow to them, was not proven to cause harm, and, consequently, the court focused on other violations to fashion a sanction, i.e., suspension. 341 Md. at 483. In Myers, on the other hand, an intentional misrepresentation of a driving record in response to a specific question put by a Maryland district court judge, led to disbarment where the lawyer had been previously suspended. 333 Md. at 449. Myers further instructs that "candor and truthfulness are two of the most important moral character traits of a lawyer", id., while Glenn instructs that Bar Counsel need not prove fraud or a particular crime to evidence a Rule 8.4(c) violation and quotes a D.C. Court of Appeals holding: "'what may not legally be characterized as an act of fraud, deceit or misrepresentation may still evince dishonesty.' In Re Wilkins, 649 A.2d 557, 561 (D.C. App. 1994)." 341 Md. at 478. In Attorney Grievance Comm'n v. Williams, 335 Md. 458 (1994), the Court of Appeals found a Maryland Rule 8.4(c) violation in an attorney's misrepresentation in court about an alleged conflict in schedule, 335 Md. at 463, but the sanction of disbarment was "imposed for the misappropriation of client funds, as this is the most egregious of [the lawyer's] violations," 335 Md. at 474. See also Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 404 (1991) ("misappropriation of funds by an attorney is an act infested with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction"). A lesser sanction was not deemed justified in Attorney Grievance Comm'n v. White, 328 Md. 412 (1992), even though the circuit court noted that the lawyer at bar had nearly 30 years of practice without any disciplinary proceedings and had misappropriated funds held in trust "while in the throes of severe alcoholism," 328 Md. at 416, there being "no specific factual finding" that the "theft was caused by alcoholism." 328 Md. at 419-420.
In Attorney Grievance Comm'n v. Joehl, 335 Md. 83, 91 (1994), an attorney who gave unreconcilable testimony at an Inquiry Panel hearing regarding his driving record "engaged in conduct involving dishonesty and misrepresentation in violation of Maryland Rule 8.4(c)."
The Court of Appeals of Maryland has refused to construe narrowly "conduct prejudicial to the administration of justice." Attorney Grievance Comm'n v. Ficker, 319 Md. 305, 313-316 (1990). Attorneys have been disciplined by the Court of Appeals on grounds of "conduct prejudicial to the administration," even though there was no criminal conviction, Attorney Grievance Comm'n v. Garland, 345 Md. 383, 394 (1997), or even a criminal prosecution, Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 600 (1995). Punishable conduct may arise from a "single inadvertent failure to appear in court." Ficker, 319 Md. at 312.
Specifically, discipline has been imposed by the Court of Appeals when an attorney failed to appear at an alcohol treatment facility after a third alcohol-related motor vehicle conviction, the fact of an appeal being held irrelevant, Garland, 345 Md. at 394, failure to file tax returns, regardless of prosecution, Breschi, 340 Md. at 600; "tampering with a witness", Attorney Grievance Comm'n v. Kent, 337 Md. 361 (1995); "fee gouging," Attorney Grievance Comm'n v. Korotki, 318 Md. 646 (1990); forgery of a judge's name to a traffic document, Attorney Grievance Comm'n v. Bennett, 304 Md. 120 (1985); and "vulgar, rude," and "profane language" amounting to "hurling of epithets during a judicial proceeding." Attorney Grievance Comm'n v. Alison, 317 Md. 523 (1989).
Even though an attorney was not prosecuted by the IRS for failure to file income tax returns (in a case where the chore was left to a wife who did not file the returns), and "although these matters were not associated directly with [the attorney's] legal practice," the court held that "willful delay" in "correcting tax delinquencies" was "conduct prejudicial to the administration of justice" in violation of Rule 8.4(d). Attorney Grievance Comm'n v. Gavin, 350 Md. 176, 193 (1998). The Court opined:
"Any time a lawyer commits an act of dishonesty, fraud or deceit, the public loses confidence in the integrity of those officers and the judicial system as a whole." Attorney Grievance Comm'n v. Casalino, 335 Md. 446, 452. . . (1994). As we have said, in the case at hand [the Circuit Judge] found respondent did not willfully fail to file and pay his taxes initially. After learning of his wife's failure to file and pay their taxes, however, respondent took an unreasonably long period of time to come into compliance with his obligations. This conduct, [the Circuit Judge] found, was "willful." Therefore, under the circumstances of this case, [the Circuit Judge] did not err in concluding that respondent's willful delay was conduct sufficiently relevant to the practice of law constituting conduct prejudicial to the administration of justice.
Id. at 193-4.
There are no reported Maryland cases or Ethics Opinions under Maryland Rule 8.4(e).
There are no reported Maryland cases or Ethics Opinions under Maryland Rule 8.4(f).
No reported Maryland case or Ethics Opinion addresses this issue.
No reported Maryland case or Ethics Opinion addresses this topic in the context of Maryland Rule 8.4.
Except for paragraphs (a) which are substantively similar, Maryland Rule 8.5 and MR 8.5 are substantially different, beginning with the title of the rule. Maryland entitles its rule "Jurisdiction," while MR 8.5 is entitled, "Disciplinary Authority; Choice of Law."
Maryland Rule 8.5(b) concerns lawyers not admitted to practice in Maryland who are nonetheless subject to the disciplinary authority of Maryland if a violation of Maryland's Rules occurs and involves "the practice of law in this State by that lawyer," or "that lawyer holding himself/herself out as practicing law in this State," or "the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control." MR 8.5(b), however, is substantially different from Maryland Rule 8.5(b). MR 8.5(b) provides choice of law rules, such that a different jurisdiction's ethics rules may apply depending upon where the misconduct occurred, where the lawyer is licensed, and where the misconduct at issue has its predominant effect. Significantly, Maryland does not allow for a choice of law analysis, so that no matter where conduct occurs or where the lawyer practices, Maryland will apply its Rules, even if they are substantively different from otherwise applicable rules of another jurisdiction.
There is no counterpart to this Rule in the Model Code.
Maryland cases address three particular jurisdictional issues. (1) Disciplinary violations in another state. In Attorney Grievance Commission v. Hopp, 330 Md. 177 (1993), the court disbarred a member of the Maryland Bar who, while practicing in California as a member of its bar, in two instances misappropriated the funds of California clients.
(2) Unauthorized practice by an attorney licensed only in another state and in the federal district court for the District of Maryland. In Kennedy v. Bar Association of Montgomery County, 316 Md. 646 (1989), the Court of Appeals reviewed and shaped an injunction that had been issued against one who was not admitted to practice in Maryland, but who was admitted in the District of Columbia, and by the federal district court in Maryland. The court held that the non-Maryland admitted lawyer "may not utilize his admission" elsewhere "to sort through clients who may present themselves in his Maryland office and represent only those whose legal matters would require suit or defense in a Washington, D.C. court or in the federal court in Maryland because the very acts of interview, analysis and explanation of legal rights constitute practicing law in Maryland." Kennedy, 316 Md. at 666. Consequently, the court determined that the "unadmitted person" committed "the unauthorized practice of law in Maryland" Id. The court, however, refashioned the injunction. Id. at 668-673. (3) In a reciprocal disbarment proceeding. In Attorney Grievance Comm'n v. Richardson, 350 Md. 354 (1998), the Court of Appeals indefinitely suspended from the practice of law, a lawyer admitted in Maryland who had been adjudicated in Florida to be in violation of the rules of professional conduct. The court said:
This is a reciprocal discipline case. In such cases, [a] final adjudication in a disciplinary proceeding by a judicial tribunal . . . that an attorney had been guilty of misconduct is conclusive proof of the misconduct in the [Maryland] hearing of charges.
350 Md. at 365. In short, the court made crystalline that it would "not permit relitigation of the facts" underlying the disciplinary judgment of the "reciprocal" jurisdiction. Id. at 368.
An attorney sanctioned in disciplinary proceedings in another state may not collaterally attack the factual findings made in those proceedings in a reciprocal discipline proceeding instituted in Maryland regardless of the fact that the other State's "standard of proof of attorney misconduct is lower than that required in Maryland." Attorney Grievance Comm'n v. Sabghir, 350 Md. 67, 81 (1998). Compare, however, the court's position when it "considers the appropriate sanction in a case of reciprocal discipline." See Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 326 (1997). On sanctions, the court looks "not only to the sanction imposed by the other jurisdiction but . . . as well" to similar Maryland cases. Id. See also, Attorney Grievance Comm'n v. Saul, 337 Md. 258 (1995); and Attorney Grievance Comm'n v. Willcher, 340 Md. 217, 222 (1995).
The Court of Appeals has accepted, in a reciprocal discipline case, the factual findings of the foreign jurisdiction. See Attorney Grievance Comm'n v. Richardson, 350 Md. 360, 368 (1998). However, the court considers the appropriate sanction by looking at Maryland precedent, as well as what the foreign jurisdiction imposed in the particular case. Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 326 (1997). In Attorney Grievance Comm'n v. Hopp, 330 Md. 177 (1993), for example, the Court of Appeals studied the out-of-state charges in light of Maryland's "well-settled" reaction to "misappropriation of funds" by an attorney. 330 Md. at 185.