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Ethics Traps for the Unwary #5: To Testify or Not to Testify

By: George S. Mahaffey | 1.31.20 | Media Featured professional liability

We defend 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. In litigating and trying cases against Bar Counsel in Maryland, we have frequently been faced with the decision of whether to call a respondent-attorney to testify at trial. If you are a respondent-attorney involved in an attorney discipline trial, this brief post provides some insights on what you need to know when making the decision of whether to testify at trial.

The Problem

Respondent-attorneys involved in attorney discipline cases are often faced with the difficult decision of whether to testify at trial. On the one hand, an attorney will often want to tell his or her side of the case; on the other, testifying can provide Bar Counsel with vital evidence to prove the basis of its charges. While the facts of each case are unique, and there may times when it is not wise to testify, the courts seem to suggest that respondent-attorneys do so at their own risk.

Thoughts from the Court of Appeals

The Court of Appeals in AGC v. Chanthunya, 446 Md. 576, 133 A.3d 1034 (2016), touched on the issue of respondent-attorney testimony and noted that even if the attorney believes Bar Counsel did not meet its burden of proof at trial, "if the lawyer has any evidence to offer and/or anything about which to testify, the lawyer should do so at the hearing, even if the lawyer does not think that the Commission has met its burden of proof." Id. at 592, 133 A.3d at 1043.

The reason for this is that the trial court is in the best position to assess the credibility of witnesses and will often want to hear the respondent-attorney's version of the facts. Depending on the facts of the case, testifying can also be a great opportunity for the respondent-attorney to explain key facts that were not properly addressed by Bar Counsel during its case-in-chief, introduce a human element to the case, appear honest, likable, and provide crucial testimony that supports mitigating evidence, and which undercuts any aggravating evidence introduced by Bar Counsel. The bottom line is, while the facts of the case will dictate whether the respondent-attorney should testify, be aware of how not testifying will appear to the trial court and the Court of Appeals.

If you have received a letter from Bar Counsel or a client has filed a complaint with the Attorney Grievance Commission, or you are currently defending a Petition for Disciplinary Charges, we can help. Contact the author, George Mahaffey, for assistance in addressing your concerns.