Ethic Traps for the Unwary #2: Cooperating with Bar Counsel and Correcting Misleading Information

By: Craig S. Brodsky | 2.13.19 | Media

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 often see lawyers charged with violating Maryland Rule 19-308.1. Bar Counsel argues the attorney has failed to cooperate with Bar Counsel or claims the attorney has not been truthful or accurate in responding to Bar Counsel. If you are an attorney who is responding to a complaint, this brief article provides some insights on what you need to know to defend yourself.

Quick Takeaways: Responding to Inquiries from Bar Counsel
  • All lawyers must respond to Bar Counsel's inquiries, no matter how trivial the inquiry may seem;
  • Taking the position that Bar Counsel is not entitled to information can be a risky strategy.

Attorneys under investigation by Bar Counsel and attorneys responding to Attorney Grievance Commission complaints are often unaware of the traps they may face. Because it is natural to question why Bar Counsel may be investigating a particular complaint, attorneys can be frustrated by the scope of the inquiry. Bar Counsel is charged with the duty to investigate all complaints that it may receive, and all attorneys have a duty to comply with the investigation. Failing to cooperate with the investigation or providing incomplete or inaccurate responses to Bar Counsel can create a host of problems for the responding lawyer which can easily be avoided.

Bar Admission and Disciplinary Matters: The Law

Rule 19-308.1 provides:

An applicant for admission or reinstatement to the bar, or an attorney in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 19-301.6 (1.6).

District of Columbia Rule of Professional Conduct 8.1 is identical to Maryland’s, and Virginia Rule of Professional Conduct 8.1 is substantially similar.

In Maryland, there are 19 reported cases since October 2016 where respondents have been charged with violating Rule 19-308.1.  This does not include myriad other matters in various stages of investigation including peer review, awaiting trial or awaiting appellate review. A review of these cases shows that Bar Counsel takes an expansive view of Rule 8.1, and that Bar Counsel routinely adds charges under Rule 8.1. In one case, Bar Counsel went so far as to charge an attorney with violating Rule 8.1 when the attorney filed objections to a subpoena to protect his client’s personal health information and other privileged material. Similarly, Bar Counsel has charged an attorney for violating Rule 8.1 for refusing to turn over tax records when the tax records sought would never provide Bar Counsel with requested information. In other cases, Bar Counsel has sought injunctions and shut down law firms when attorneys have failed to respond to letters from Bar Counsel. Importantly, when charging an 8.1 violation, Bar Counsel accuses the attorney of dishonesty, which, if found by the Court, can lead to the imposition of an increased sanction including indefinite suspensions and disbarment. Bar Counsel argues attorneys who do not respond or who withhold information from Bar Counsel are not fit to practice law.

What to do if You Receive a Letter from Bar Counsel 

While each case is unique, failing to respond to a request for information from Bar Counsel creates far more difficult problems than filing a response in which an attorney may admit some wrongdoing. Bar Counsel routinely charges respondents with an 8.1 violation, and these charges are heavily scrutinized by peer review committee members, circuit court judges and the Court of Appeals. In addition, taking the position that Bar Counsel is not entitled to certain information can be a risky strategy. In most cases, we advise our clients to cooperate as much as possible with Bar Counsel when subjected to an investigation or charged with ethical violations. Indeed, taking the position that Bar Counsel cannot investigate or is investigating irrelevant information can create animosity with the Office of Bar Counsel that may permeate the entire course of the litigation adding the possibility of increased sanctions and inflated costs of defense. The more effective strategy is to communicate openly with Bar Counsel, cooperate whenever possible, and take positions which are well-grounded in the facts and applicable law.  

If you have received a letter from Bar Counsel or a client has filed a complaint with the Attorney Grievance Commission, or you are current defending a Petition for Disciplinary Charges, we can help. Craig Brodsky has extensive experience handing these cases and is available to address your concerns. If your organization is interested in a presentation from a legal malpractice or professional malpractice expert at your next event, contact us today.