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REVISIONS TO TITLE 16, CHAPTER 700, OF THE MARYLAND RULES:
THE ATTORNEY DISCIPLINARY PROCESS MAY BE FASTER, BUT IS IT BETTER?
By Kathleen H. Meredith, Esquire, Iliff & Meredith, P.C
New rules governing the attorney disciplinary process in Maryland took effect on July 30, 2001. The new rules increase Bar Counsel's investigative powers, replace the old Inquiry Panels with Peer Review Panels, and abolish the Review Board. These changes are not mere window dressing. The new rules create a significantly different attorney disciplinary process than the one to which we have all become accustomed.
Bar Counsel's increased investigative powers allow Bar Counsel to subpoena witnesses, and to record their statements under oath. The Peer Review Panels will function very differently from the old Inquiry Panels. The Inquiry Panels held hearings, at which the parties called and cross-examined witnesses and presented evidence. The matter then went to Review Boards, which often requested or allowed oral argument on behalf of the attorney and Bar Counsel. Under the new Rules, the Peer Review Panels will not hold evidentiary hearings, adjudicate facts, or write reports or recommendations. Their role will be to seek resolution of issues without need of an evidentiary hearing. The first true hearing that an attorney gets under the new rules will be in Circuit Court, assuming the matter goes that far.
Consistent with the Court of Appeals' stated purpose of expediting the attorney disciplinary process, there is a recurrent emphasis in the new Rules on time limits within which investigations and the various steps of the disciplinary process must be completed. While the process is undoubtedly streamlined, attorneys should be aware that one of the ways in which the new rules hasten the process is by increasing the investigative tools at Bar Counsel's disposal while reducing the attorney's opportunity to participate in actual hearings. Only time will tell whether this streamlined approach to disciplinary issues is not only "faster", but also "better". This paper reviews the disciplinary process, highlights the major changes to the process under the new rules and explores some of the practical ramifications of these changes. Tables providing an "Overview" of the changes intended by the new rules and a "Comparison" of the disciplinary systems under the old and new Rules appear at the end of this article.
a. The Investigative Process
Bar Counsel must investigate every complaint that is not facially frivolous or unfounded. New Rule 16-731(d) provides that Bar Counsel shall complete an investigation within ninety (90) days of opening the file on the complaint. Failure to meet this deadline may result in dismissal of the complaint and termination of the investigation.
Bar Counsel, with the approval and authorization of the Chair of the AGC, has the power under the new rules to issue "investigative subpoenas." The subpoenas may compel the attendance of witnesses and the production of documents. Bar Counsel's "investigative subpoenas" are to comply with Maryland Rule 2-510(c), except that to the extent practicable such subpoenas should not identify the attorney under investigation. Bar Counsel is to serve a copy of investigative subpoenas on the attorney under investigation. All papers filed in court with respect to investigative subpoenas shall be sealed upon filing and opened to inspection only by order of the court. Hearings relating to Bar Counsel's investigative subpoenas shall be on the record, and such hearings shall be conducted outside the presence of all persons other than Bar Counsel, the attorney, and those persons whose presence the court deems necessary.
Statements taken from a witness pursuant to subpoena must be under oath and contemporaneously recorded. The new rule is otherwise silent as to the procedures and rights pertaining to these witness statements. For instance, the rule does not specify whether the attorney respondent, or his counsel, has a right to be present or to ask questions. The rule does not specify if the person giving the statement has a right to counsel. Nor does the rule specify whether Bar Counsel is required to have a transcript made of the recorded statement or to provide a copy of the statement to the attorney under investigation.
b. Possible Outcomes Short of Statement of Charges
Upon completion of an investigation, Bar Counsel must recommend one of the following actions:
a. dismissal or termination of the complaint with or without a warning;
b. approval of a Conditional Diversion Agreement;
c. issuance of a reprimand;
d. filing of a Statement of Charges;
e. the immediate filing of a Petition for Disciplinary or Remedial Action.
Dismissal is appropriate when the attorney has not engaged in professional misconduct. If there has been misconduct, but it was not sufficiently serious to warrant discipline or is not likely to be repeated, Bar Counsel may recommend "termination", with or without a warning. If the AGC approves of Bar Counsel's recommendation to dismiss or terminate without a warning, it will dismiss the complaint or otherwise terminate the proceeding.
The "warning" provision comes into play if Bar Counsel concludes that the attorney engaged in some professional misconduct, but that the conduct was not sufficiently serious to warrant discipline, and that "a specific warning to the attorney would be helpful to ensure that the conduct is not repeated." A warning does not constitute discipline, but the complainant will be notified that the termination of the proceeding was accompanied by a warning against repetition of the conduct.
Under the old rules, the attorney had no right to contest termination of the proceeding with a warning. Under the new rules, however, the attorney has a right to file a written notice rejecting the warning. If the attorney files a notice of rejection, the AGC will not issue the warning, and Bar Counsel may take any other action permitted under Chapter 700.
The new rules give Bar Counsel discretion to enter a "Conditional Diversion Agreement" under appropriate circumstances. This is one of the most significant changes in the new rules. A Diversion Agreement is appropriate where the attorney committed professional misconduct, but the misconduct was not willful or dishonest, and the cause of the professional misconduct is subject to remediation through alternative programs, and where the public interest will not be harmed by the agreement. Diversion Agreements are completely voluntary and neither Bar Counsel nor an attorney is required to propose or enter into an Agreement. As with proposed warnings, if an attorney rejects Bar Counsel's proposed Diversion Agreement, or if the AGC does not approve an agreement signed by Bar Counsel and the attorney, Bar Counsel may take any other action permitted in Chapter 700.
By signing a Diversion Agreement, an attorney acknowledges that he has engaged in professional misconduct and warrants that he has not concealed or misrepresented any material facts pertaining to the conduct. The particular course of remedial action agreed to by the attorney, as well as the time frame within which it must be completed, is set forth in the written Agreement. Diversion Agreements are expressly conditioned on the attorney's not engaging in any further conduct that would constitute professional misconduct. The agreements are intended to provide lawyers the opportunity to reflect on matters that have gotten them into trouble and to establish procedures which will avoid future problems. If a Diversion Agreement is approved by the AGC, the disciplinary or remedial proceeding is stayed pending the attorney's satisfactory performance and completion of the Agreement, and the disciplinary action is terminated once the terms of the Agreement have been fully met.
Bar Counsel may declare a default on a Diversion Agreement if Bar Counsel determines that the attorney engaged in further professional misconduct while subject to the Agreement, willfully misrepresented or concealed material facts during the negotiation of the Agreement, or has failed in a material way to comply with the Agreement. Bar Counsel must give the attorney written notice of the proposed default and afford the attorney a reasonable opportunity to refute the determination.
The AGC's approval of a Diversion Agreement signed by the attorney and Bar Counsel does not constitute discipline. The contents of a Diversion Agreement are confidential and may not generally be disclosed.
Another possible outcome under the "new" rules, short of a statement of charges being filed, is a "reprimand", but unlike a warning or a Diversion Agreement, a reprimand does constitute discipline. If Bar Counsel determines that an attorney has engaged in professional misconduct and that the appropriate sanction is a reprimand, Bar Counsel shall serve on the attorney a written offer of reprimand. To accept the offer, the attorney must stipulate to and endorse the proposed reprimand. An attorney may also reject the reprimand or may suggest amendments to the proposed reprimand and the parties may negotiate further regarding the language of the reprimand. The reprimand language must be approved by the AGC. If a reprimand is proposed and rejected by the attorney, or if a reprimand to which the parties have stipulated is not approved by the AGC, the disciplinary proceeding shall proceed as if no reprimand had been proposed, and neither the fact that the reprimand was proposed, rejected or not approved, nor the contents of the reprimand or any stipulation, may be admitted into evidence.
c. Statement of Charges
Bar Counsel shall file a Statement of Charges if Bar Counsel determines that the attorney engaged in professional misconduct, the misconduct does not warrant an immediate Petition for Disciplinary or Remedial Action, and other remedies, such as
Conditional Diversion Agreement or Reprimand, are inappropriate or unavailable. Bar Counsel must include with the Statement of Charges a fair summary of the evidence developed through the investigation, including any response that the attorney sent to Bar Counsel regarding the matter.
Within thirty (30) days of filing the Statement of Charges, the Chair of the Peer Review Committee shall appoint a Peer Review Panel and schedule a meeting of the Panel. The Panel meeting shall ordinarily occur within sixty (60) days after appointment of the Panel. The Panel determines: (1) whether the Statement of Charges has a substantial basis and there is reason to believe the attorney has committed professional misconduct; and (2) if so, whether a Petition for Disciplinary or Remedial Action should be filed or some other disposition is appropriate.
The peer review process "is not intended to be an adversarial one and it is not the function of Peer Review Panels to hold evidentiary hearings, adjudicate facts, or write full opinions or reports." The Peer Review Panel shall conduct the meeting "in an informal manner." Bar Counsel, the attorney, and each complainant shall be allowed to explain their positions and offer relevant supporting information. Upon request of Bar Counsel or the attorney, the Panel may, but need not, hear from any other person. The Panel is not bound by any rules of evidence, but "shall respect lawful privileges." The Panel may exclude a complainant after listening to his or her statement, and may consult separately with Bar Counsel or the attorney "as a mediative technique." The Peer Review Panel may also meet in private to deliberate.
If the Panel determines that the Statement of Charges has a substantial basis and that there is reason to believe the attorney engaged in professional misconduct, it may recommend to the AGC a dismissal, with or without a warning; a Conditional Diversion Agreement; a reprimand; or the immediate filing of a Petition for Disciplinary or Remedial Action, or it may inform the parties of its proposed recommendation and allow the attorney an opportunity to consider a reprimand or a Conditional Diversion Agreement.
d. Petitions for Disciplinary or Remedial Action
Upon approval of the AGC, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. The Petition shall designate the AGC as petitioner and the attorney as respondent. Upon filing of the Petition, the Court of Appeals enters an order designating a circuit court judge to hear the action and requiring the judge, after consultation with Bar Counsel and the attorney, to issue a scheduling order.
A hearing on a disciplinary action is governed by the rules of evidence and procedure applied to a court trial in a civil action tried in a circuit court. The hearing must generally be completed within one hundred twenty (120) days after service on the respondent attorney of the order designating a judge. The AGC, through Bar Counsel, has the burden of proving the averments of the Petition by clear and convincing evidence. A respondent attorney bears the burden of proving affirmative defenses and matters or mitigation or extenuation by a preponderance of the evidence.
The judge is required to make a record of all findings of fact and conclusions of law. Unless the Court of Appeals extends the time, the judge's findings and conclusions shall be filed with the clerk responsible for the record no more than forty five (45) days after the conclusion of the hearing. The petitioner is responsible for causing a transcript of the hearing to be prepared and included in the record. Unless a different time is ordered by the Court of Appeals, the clerk shall transmit the record to the Court of Appeals within fifteen (15) days after the statement of the judge's findings and conclusions is filed.
The Clerk of the Court of Appeals must notify the parties that the record has been filed, and each party has fifteen (15) days from the date of service of the notice to file exceptions to the findings and conclusions, and to file recommendations concerning appropriate disposition. The adverse party may file a response within fifteen (15) days after service of exceptions or recommendations.
The Court of Appeals will then set a date for oral argument, unless the parties waive oral argument. The standard of review by the Court of Appeals is de novo review with regard to the circuit court judge's conclusions of law. If no exceptions are filed, the Court of Appeals may treat the hearing judge's findings of fact as established for the purpose of determining any appropriate sanctions. If exceptions are filed, the Court of Appeals shall determine whether the findings of fact have been proven by clear and convincing evidence as to the averments of the petition and preponderance of the evidence as to affirmative defenses and matters of mitigation or extenuation. The Court of Appeals may order disbarment, suspension, reprimand, inactive status, dismissal of the disciplinary or remedial action; or remand for further proceedings. The decision of the Court of Appeals is final and shall be evidenced by an order which the clerk shall certify under the seal of the court.
Conclusion
Some have suggested that the new Rules are designed to achieve three goals: (1) to speed things up; (2) to enhance protection of the public, and (3) to provide a "kinder, gentler" environment in which disciplinary matters -- particularly those not involving intentional or dishonest misconduct - can be considered and resolved in a non-confrontational way. The Rules seem well drafted to accomplish the first two goals. Only time will tell whether the last goal is also achieved.
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