In AGC v. Pierre, the Supreme Court of Maryland addressed, for the first time, the propriety of Bar Counsel opening an investigation, in the midst of an election, into an attorney running as a judicial candidate. (See AGC. v. Pierre, 2023 Md. LEXIS 376 (Aug. 16, 2023))
Pierre arose in the course of a November 2020 election in which five candidates were vying for four seats on the Circuit Court for Montgomery County, Maryland. Four of the candidates were sitting judges and Ms. Pierre was the challenger. Id. at *13.
On August 28, 2020, two months prior to the election, one of the sitting judges sent a campaign email to various attorneys about Ms. Pierre, which included allegations that she had acted in an unprofessional way as an attorney. Id. at *14. One of the recipients of the email was Bar Counsel who replied within an hour, informing the judge that she had opened an investigation into Ms. Pierre. Id. The sitting judge responded to the email from Bar Counsel and discussed the putative investigation with her. Id. at *15. On September 7, 2020, Bar Counsel informed Ms. Pierre that she was opening an investigation into her because of the email from the sitting judge and ultimately Bar Counsel filed a petition for disciplinary relief or remedial action in November of 2021.
While the Supreme Court found that Ms. Pierre “engaged in serious misconduct,” id. at *81, the Court found a reprimand to be the appropriate sanction because of the unusual nature of the case and Bar Counsel’s actions. That is, the Court recognized that “our rules do not contain any guidelines for how to handle allegations of misconduct by lawyers involved in elections generally or in judicial elections specifically.” Id. The Court added that to avoid any questions of impropriety in the future, investigations “by Bar Counsel into alleged misconduct by a candidate in a judicial election should generally be postponed until after the election unless: (1) doing so would put an individual or the public at risk from past or potential future misconduct that is within the purview of the Commission and that could be avoided by prompt investigation; or (2) prompt investigation is necessary to preserve evidence. In either case, Bar Counsel should generally confine pre-election activities to what is necessary to satisfy the exigency.” Id. at *7-8. The Court further held that it would ask the Standing Committee on the Rules of Practice and Procedure to consider adopting procedures for addressing allegations of misconduct that arise during the campaigns for elected office generally and judicial offices specifically. Id. at *8 n.5.
As for the actions of Bar Counsel in initiating the investigation of Ms. Pierre within an hour of receiving an email (and on the eve of an election), Justice Battaglia and Justice Watts expressed deep concern. In their concurrences, both justices questioned Bar Counsel’s judgment, and Justice Watts suggested the appointment of special counsel pursuant to Maryland Rule 19-702(h)(6) to investigate the matter. Id. at *93 n.3. The takeaway from Pierre is that Bar Counsel will have to tread carefully when handling investigations of judicial candidates, especially when those investigations are occurring near an election and when they arise because of concerns raised by opponents of the candidates.
George Mahaffey advises and defends a wide variety of clients in professional liability matters. He handles ethics-related matters on behalf of accountants, attorneys, engineers, design professionals, and financial services and insurance professionals.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.