Saturday, June 9, 2018

More On Discovery In Bar Discipline

How should discovery work in bar discipline proceedings?

That question was raised in a case I prosecuted involving an attorney named David L. Herndon. 

A native of Springfield, Illinois, he claimed kinship to attorney William Herndon of the Lincoln & Herndon law firm. 

In Herndon, the court rejected an asserted violation of his discovery rights

 Our review of the record of the disciplinary proceedings illustrates that the Hearing Committee permitted Herndon "reasonable discovery" under any tenable definition of that term. At a pre-hearing conference, Herndon presented his request for production of documents from [former client/complainant] MCC. After reviewing the request, Bar Counsel asked the Hearing Committee to limit the scope of the request, stating that "it obviously [is] a request for every document that this corporation has engendered during its history." The Hearing Committee Chairman, after hearing arguments by the parties, granted the portion of Herndon's discovery request for the production of documents to or from him and all checks made payable to him, documents relating to any communications between MCC and him, and documents supporting the allegations made by MCC in a memorandum dated April 5, 1988 to MCC's attorney, Gins, including records showing bills received and payments made to the various vendors.

The Chairman, however, denied Herndon's request for documents relating to the hiring and firing of MCC's accountants, documents relating to hiring and firing of MCC's outside consultants, documents showing MCC's financial status and documents *597 used in the preparation thereof, and documents relating to MCC's suppliers and customers, finding that Herndon had failed to demonstrate a compelling need by failing to "tie those requests into specific allegations of the Complaint and your Answer to the Complaint."[6] Nevertheless, the Chairman held "that to the extent Bar Counsel looks at additional documents [of MCC], it would seem proper that you be provided with an opportunity to examine those documents as well."

The Chairman also made clear at the prehearing conference that additional discovery would be allowed if "further need for additional documents emerges that are clearly related to the issues that are framed." After the first day of the hearing, the Chairman again reminded Herndon of the committee's earlier position with respect to his discovery request:

If documents turn up to which you have not had an opportunity to respond or deal with and which appear to be material and pertinent to your defense, and if further proceedings are necessary, we're going to hold them. So that we're going to see to it, as I've said before, that to the extent I as the Chair and the Committee understands the case and to the extent the Committee appreciates the relevance and the materiality and compelling need for these documents, we will not close the record until you have had an opportunity to respond to them at some point.

Several days later at the next hearing date, Herndon made a motion for contempt for MCC's failure to comply with discovery. Bar Counsel asserted that there had been substantial compliance with the discovery requests, indicating that nineteen documents had been produced before the hearing, that three vendor files had been produced pursuant to the Chairman's ruling from the first day of the hearing, that the Washington Post vendor file had not been produced because Herndon never returned it to MCC after MCC had given it to him, and that a checkbook and checkstubs for the relevant time frame had been produced. Finding compliance with the discovery request, the Chairman denied Herndon's motion. Thereafter, Herndon announced his intention to leave the proceedings and did so after the Chairman informed him that the hearing would continue even if he chose to leave. Herndon's voluntary absence from the proceedings foreclosed the possibility that the Chairman would award additional discovery to Herndon pursuant to his earlier ruling.

The Hearing Committee Chairman did not deny Herndon reasonable discovery by partially denying his request for production of these documents. Herndon's request for documents was sweeping in nature, covering virtually every document in MCC's files. Cf. Premium Serv. Corp., supra, 511 F.2d at 229; In re Electric Weld Steel Tubing Antitrust Litigation, 512 F. Supp. 81, 84 (N.D.Ill.1981). In light of MCC's status as a non-party, the Chairman acted reasonably in determining that Herndon's need for the excluded documents did not "sufficiently outweigh the burden and invasion of corporate privacy" which would have resulted to MCC. See Premium Serv. Corp., supra, 511 F.2d at 229; Hecht, supra, 46 F.R.D. at 607. Thus, we are satisfied that the Hearing Committee complied with the discovery requirements of Rule XI, ยง 8(f).

Authored by Associate Judge James Belson, joined by Associate Judge John Steadman and Michael Farrell. What a privilege it was to appear before them. 

In Maryland, once charges are filed, the civil discovery rules apply. (Mike Frisch)

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