Once a Maryland attorney discipline trial is over, Bar Counsel will often seek to recoup costs related to the investigation and trial. Some of these costs may be associated with rule violation charges that Bar Counsel either withdrew or was unable to prove at trial. This article provides some tips for respondent attorneys on how to avoid getting stuck paying for unnecessary or improper costs.
The Statement of Costs
Bar Counsel will submit the statement of costs to the Court of Appeals. Through this filing, Bar Counsel will seek to recoup costs against the respondent-attorney for, among others, transcripts for statements under oath and/or depositions, copying, and trial transcripts. The costs will vary from case to case but can easily range from $10,000 all the way up to $30,000 or more.
What the Law Says About Assessing Costs in Discipline Cases
While Maryland Rule 19-709 allows a prevailing party to recover certain costs, there is no specific definition of what constitutes a "prevailing party" in an attorney discipline case. Under federal law, the determination of which party has prevailed in a case with multiple claims or charges (such as a discipline case) would depend on which party prevailed on which claim. In a case in which each party prevailed on a portion of their claims or defenses, a court could conclude that no party was the prevailing party; thus, each side would bear its own costs. See Palateria La Michoacana, Inc. v. Productos Lacteos Tocumbo, S.A. De C.V., 247 F.Supp.3d 76 (D.D.C. 2017). Likewise, a court could conclude that both parties had prevailed as to certain claims, in which case each party could recoup certain costs. James v. Wash Depot Holdings, Inc., 242 F.R.D. 645 (S.D. Fla. 2007).
While there are not many Maryland appellate cases analyzing statements for costs in discipline cases, the Court of Appeals has found it inequitable to assess costs against respondents for a number of reasons, including when some or all of the charges asserted against were not proven by clear and convincing evidence. See AGC v. Dyer, 453 Md. 585, 683, 162 A.2d 970, 1027 n. 19 (2017). In Dyer, the Court of Appeals found it inequitable to assess costs against the respondent-attorney since the bulk of Bar Counsel's charges were not sustained, and the costs did not relate to the violation found by the hearing judge. While not specifically analyzed in Dyer, it should also be inequitable to assess costs against a respondent that had no basis in fact and/or for costs associated with charges that the respondent-attorney conceded to prior to trial.
How to Respond to Statements for Costs
What this means in practice is that a respondent-attorney should oppose any request by Bar Counsel that seeks costs associated with claims that were rejected by the trial court and/or claims that were contained in the Petition for Disciplinary Relief or Remedial Action ("PDRA") but never prosecuted during the trial. In our experience, Bar Counsel will include charges in the PDRA that it ultimately dismisses at the end of trial but only after the respondent has incurred costs defending against the charge. We do not believe these types of costs should be assessed against a respondent. If and when you oppose Bar Counsel's statement of costs, be sure to specifically detail exactly which costs are proper and which ones should be rejected, and the reasons why.
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 the author, George Mahaffey.