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Legal Ethics Committee 

Dear Fellow Members:

Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.

 

MD Rules of Professional Conduct

 

Legal Ethics Hotline Volunteers ... April
Allen Katz ... 301-840-8007 ... ajkatzesq@aol.com
David Gavin ... 301-279-2700 ... pdgavin@yahoo.com

 

Legal Ethics Hotline Volunteers ... May
Brian Barkley ... 301-251-6600 ... bbarkley@barkenlaw.com
Ed Sharkey ... 301-657-8184 ... esharkey@sharkeylaw.com

  

CANDOR TOWARDS THE TRIBUNAL

An attorney has failed to show candor, and thus violates Maryland Attorneys’ Rules for Professional Conduct (“MRPC”), when the attorney knowingly: (1) makes a false statement of law or fact to the tribunal and fails to correct it; (2) fails to disclose a material fact to the tribunal when necessary to avoid assisting a client in a  criminal matter; (3) fails to disclose to the tribunal legal authority in the controlling jurisdiction known to that attorney to be directly adverse to the client and not disclosed by the opposing party; or (4) offer evidence that the attorney knows to be false, or came to know of its falsity, and did not take appropriate remedial measures. Md. Code Ann., Att’y R. Prof. Conduct § 3.3 (West 2016). The purpose for this rule is to maintain the confidence that the judiciary has in advocates who represent clients before the court. 

See Att’y Grievance Comm’n of Maryland v. Peters-Hamlin, 136 A.3d 374, 385 (2016) (stating that the tribunal has the right to rely upon attorneys to assist in determining the truth of the case before it). These rules impose a duty upon attorneys to conduct themselves with honesty throughout the litigation process. See id. 

Attorneys knowingly making a false statement of law or fact when, through their conduct, they make a material misrepresentation of  law or fact to the tribunal. In Sperling, the respondent attorney was charged with violating 3.3(a)(1) of the MRPC. See Att’y Grievance Comm’n of Maryland v. Sperling, 69 A.3d 478, 481-82 (2013). The respondent attorney had represented to the court that he maintained constant contact with the clerk’s office, who assured him that his case being dismissed was an error which was remedied. Id. at 483-84. The court concluded that respondent’s assertions were not credible when he could not produce information regarding dates, times, or even the names of the clerk who assured him of the supposed remedy. Id. at 487. The court held that respondent’s assertions were an attempt to place blame on others so that his matter would be re-opened to the court for litigation, and thus was a failure to be candid with the court and a violation of MRPC 3.3. See id. at 488. 

A false statement of law or fact can further be found even where the attorney did not directly commit the violation in the presence of the court. In McGlade, the respondent was charged with violation of MRPC 3.3 during his representation of a client in a building code violation hearing. See Att’y Grievance Comm’n of Maryland v. McGlade, 42 A.3d 534, 535-36 (2012). Respondent met with the county attorney outside of the courtroom and negotiated a consent-order for the full amount of the fines, during which, respondent represented that he met with his client twice before agreeing to the settlement, when in fact he did not. Id. at 536. The court then signed the consent order and gave the defendant thirty days to comply with the order. Id. After failing to comply with the order, the defendant testified before the court that he did not consent to the agreement. Id. The court held that when respondent said “we very much want to avoid the entry of a money judgement, so we have today paid the fines” impliedly represented to the court that respondent’s client consented to the agreement, which was a false statement of fact and showed lack of candor to the court. See id. at 542.

Conversely, an attorney’s false statement of fact or law is not a violation when he or she does not act with the intent to mislead the court. In Smith, the respondent prosecutor failed to update the victim on the status of the trial involving a defendant in a child sex abuse case. See Att’y Comm’n of Maryland v. Smith, 109 A.3d 1184, 1189 (2015). This failure resulted in the respondent making a misrepresentation to the court regarding whether the guardian was available for trial. See id. at 1190. The Court held that, while respondent did make a false statement of fact or law, his actions did not rise to the level of knowingly. See id. at 1196. The Court of Appeals deferred to the judgement of the preceding judge who found respondent’s testimony credible when determining respondent did not intentionally mislead the court. See id. at 1196-97 (holding that this Court defers to the factual findings of the hearing judge on issues involving credibility); see also Att’y Grievance Comm’n v. Rohrback, 591 A.3d 488, 497 (1991) (holding that respondent in DWI proceeding did not show lack of candor to the court, where the presiding judge did not inquire into the material fact and where respondent’s silence could not reasonably corroborate that material fact). 

Failure to Appear
The Maryland Court of Appeals has held that an attorney’s failure to appear at trial, absent an acceptable excuse, is incompetent representation, which violates the MRPC. See Att’y Grievance Comm’n of Maryland v. Walker-Turner, 51 A.3d 553, 560 (2012). Without the presence of the attorney, the judicial process cannot function. See Murphy v. State, 416 A.2d 748, 753 (1980) (stating that “an attorney plays such an integral role in the judicial process that without his presence the wheels of justice must, necessarily, grind to a halt.”). In Butler, respondent attorney attempted to resolve a scheduling conflict by contacting opposing counsel and attempting to secure substitute counsel for his client prior to the hearing. See Att’y Grievance Comm’n of Maryland v. Butler, 44 A.3d 1022, 1028 (2012). Ultimately, respondent was unsuccessful in his efforts and left for Florida while a default judgement was entered against his client. See id. The Court of Appeals held that respondent’s failure to secure representation for his client’s hearing was irresponsible and incompetent representation. See id; but see Att’y Grievance Comm’n of Maryland v. Butler, 44 A.3d 1022, 1028 n.6 (2012) (holding that respondent’s scheduling dilemma in a prior proceeding arose the day before and his efforts to accommodate the schedules of both courts and clients' desire to resolve expeditiously the civil case, did not constitute incompetent representation).

Similarly, in Harris, the Court of Appeals held that attorney violated the MRPC when he failed to appear at a hearing which resulted in his client’s case being dismissed with prejudice. See Att’y Grievance Comm’n of Maryland v. Harris, 784 A.2d 516, 527 (2001). Respondent asserted that he was dealing with a dying relative and was unaware of his trial schedule. Id. The Court held that his excuse, while sympathizing with respondent’s personal tragedies, was not sufficient to not find that respondent violated the MRPC but would be considered as a mitigating factor. See id.

Possible Remedies for Judges to Pursue

Contempt Orders
The contempt power is one that is vested in the trial court to compel cooperation in the judicial proceedings. See Droney v. Droney, 651 A.2d 415, 420 (1995). These contempt orders are divided between civil and criminal contempt orders. Id. Civil contempt orders are remedial in nature and are designed to compel compliance while criminal contempt orders are designed to punish past misconduct which cannot be remedied. See id. Contempt before the court can be either constructive or direct. See Archer v. State, 859 A.2d 210, 219 (2004). Direct contempt occurs when the offense happens in front of or so near the trial judge that it impedes the court process. See id. Constructive contempt is all other forms of contempt. Id. 

Under Maryland Rule 15-203, a court against which a direct civil or criminal contempt has been committed may summarily impose sanctions if: "(1) the presiding judge has [ . . .] directly perceived the conduct constituting the contempt and has personal knowledge of the identity of the person committing it, and (2), the contempt has interrupted the order of the court and interfered with the dignified conduct of the court's business." Md. Code Ann., Md. R. §15-203(a) (West 1997). Either before or after a direct contempt order has been issued, a judge must state with specificity: (1) whether the contempt is civil or criminal; (2) the evidentiary facts from the judge’s personal knowledge on what conduct meets that contempt; (3) the sanction imposed for the contempt; (4) how the contempt may be purged if it is civil; and (5) if the sanction is incarceration for a determinate time and any condition which may modify such sanction if it is criminal. See Md. Code Ann., Md. R. §15-203(b) (West 1997). 

Direct contempt, such as failure to appear or disruptive courtroom behavior may be summarily punished as the presiding judge may deem just and necessary. Ashford v. State, 750 A.2d 35, 41 (2000). In Hermina, the Court of Appeals stated that because an attorney’s failure to attend court disrupts the scheduled proceedings and is committed in the judge’s presence, it is punishable by contempt. Hermina v. Baltimore Life Ins. Co., 739 A.2d 893, 899 (1999). The Court, however, overturned the contempt order on the grounds that the court relied on evidentiary facts not within the judge’s personal knowledge. See id. at 901 (holding that a contempt order cannot stand where the judge must rely on extrinsic evidence to identify the behavior which forms the contempt). 

Sanctions for Candor
When an attorney fails to show candor towards the tribunal, the Maryland Court of Appeals has original and complete jurisdiction over the disciplinary proceeding. See Att’y Grievance Comm’n of Maryland v. Sperling, 69 A.3d 478, 488 (2013). Disbarment has been deemed an appropriate sanction in situations where an attorney has failed to show candor to the court. See Att’y Grievance Comm’n of Maryland v. Peters-Hamlin, 136 A.3d 374, 385 (2016) (holding that disbarment was appropriate where attorney instructed first year associate to “mark-up” deposition transcripts in an effort to claim them as work-product privilege); Att’y Grievance Comm’n of Maryland v. Butler, 172 A.3d 486, 496 (2017) (holding disbarment was appropriate sanction where attorney submitted false testimony on two separate occasions, submitted false federal and state forms and disclosures, and lied to an inspector general to cover up actions of deceit). 

Obligation to Report
While a judge may be free to summarily impose certain sanctions against an attorney, that judge may still be required to report that misconduct to the appropriate disciplinary committee. Section 18-102.15 of the Maryland Code of Judicial Conduct states that a judge may take corrective measures regarding the misconduct of an attorney or fellow judge. See Md. Code Ann., Md. Judges R. § 18-102.15 (West 2016) (a) (stating that “a judge shall take or initiate appropriate corrective measures with respect to the unprofessional conduct of another judge or attorney”). However, the rule discusses situations that would require a judge to report the misconduct to the appropriate disciplinary committee. See id. § 18-102.15 (b)-(d) (stating that where the corrective measures are inappropriate or ineffective to correct the misconduct, a judge shall report the attorney or judge to the appropriate committee). The rule states that a judge shall report where there is a “substantial question” as to an attorney's honesty, trustworthiness, or fitness as an attorney, or to a judge’s fitness for the judiciary role. Id.

The state of Maryland has no written opinions giving a definition to conduct that raises a substantial question, however, the advisory comment to the rule provides some insight on what could be considered an appropriate corrective measure.  See Md. Code Ann., Md. Judges R.  §18-102.15 (West 2016) (Comment.) (Stating that appropriate corrective measure can include private admonition, direct communication with the attorney or judge, and referral to a bar counseling service).

Conclusion
Based on case precedent and statutory authority, the trial court can enter a direct contempt order against an attorney who fails to appear at a scheduled hearing absent an acceptable excuse. Furthermore, the trial court will likely have to defer disciplinary proceedings of an attorney who fails to show candor to the court with the proper jurisdictional authority to handle the matter. Judges are not required to report where the corrective measure taken to admonish the attorney for misconduct is appropriate. There can be a duty imposed on a judge to report to the appropriate disciplinary committee when the attorney’s conduct raises a substantial question of that attorney’s ability to perform his or her duties, however, there has not been a written opinion on what conduct raises that substantial question.

The Honorable Carlos Acosta
The Honorable Rand Gelber
Assisted by their Law Clerk, Leon C. Stern, Jr.
P. David Gavin, Co-Chair
Allen J. Katz, Co-Chair
Samuel M. Shapiro, Co-Chair

Co-Chairs

P. David Gavin
Allen J. Katz

Samuel M. Shapiro

 

Committee Meetings

May 16, 2018

Meetings will be held on the 3rd Thursday of the month at 4:30PM in the upstairs conference room of the Bar Association building, unless otherwise noted.

     
     

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