Respondent-attorneys are currently powerless to dispose of charges in Maryland attorney-disciplinary cases, even when Bar Counsel fails to prosecute them at trial. That needs to change either via an amendment to the current rules or through empowering trial courts to enter proposed findings of fact and conclusions of law at the close of Bar Counsel’s case.
The Predicament: Meritless Charges
Imagine you are a Maryland attorney involved in a trial for alleged violations of the Maryland Lawyers’ Rules of Professional Conduct. Bar Counsel has concluded its case-in-chief, but has produced no evidence concerning one or two of the charges leveled against you in its Petition for Disciplinary Relief or Remedial Action (also known as a "PDRA"). What do you do? Do you incur substantial costs in defending against those charges, including potential expert testimony, or do you move to dismiss the charges?
Trial Courts Are Reluctant to Take Action
Currently, there is no mechanism by which a respondent-attorney can move to dispose of charges, even when Bar Counsel has failed to prosecute them at trial. We have seen this firsthand in the cases we have tried against Bar Counsel. For instance, Bar Counsel will assert six charges against a respondent-attorney, but only put on evidence as to five of the charges. In that situation, we have moved to dismiss the charge that Bar Counsel failed to prosecute and/or requested that the trial courts enter findings of fact and conclusions of law, but the trial courts have always refrained from doing so, citing Maryland Rule 19-725, which is the rule relied upon by Bar Counsel in opposing any attempt to dispose of charges either before or during trial.
Maryland Rule 19-725
Maryland Rule 19-725(c) states that "Motions to dismiss the proceedings are not permitted," and the Committee Notes on the rule state that “because the authority of the circuit court judge designated by the Court of Appeals pursuant to Rule 19-722 is limited to taking evidence and making findings of fact and proposed conclusions of law, that judge is not empowered to dismiss a petition. Defenses to the petition may be raised in the answer and may be addressed by the designated judge, but only the Court of Appeals has authority to dismiss all or part of a petition.”
While Rule 19-725(c) does mention motions to dismiss and the outright dismissal of PDRAs, it does not state that trial courts cannot enter findings of fact and conclusions of law at the close of Bar Counsel’s case. While we continue to believe that common sense and principles of fairness dictate a change to the Maryland Rules to permit the filing of dispositive motions in attorney-discipline cases, at minimum and assuming that the rules are not changed, Rule 19-725 should be viewed as permitting trial courts to enter proposed conclusions of law at the close of Bar Counsel’s case on charges that were: (1) not prosecuted; and/or (2) which were without merit or unsupported by evidence during the trial. Entering findings of fact and conclusions of law at the close of Bar Counsel’s case would not constitute a dismissal under Rule 19-725 and would be consistent with the rule’s requirement that “only the Court of Appeals has authority to dismiss all or part of a petition.” It would also be a good first step in offering minimal protections for respondent-attorneys who are sometimes faced with the daunting prospect of defending against charges which have no basis in fact or law.
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.
