Monday, January 31, 2022
An Ill-Advised Prosecution Results In Dismissal
The unanimous Maryland Court of Appeals inflicted a sound defeat on its Bar Counsel and dismissed a petition against an attorney despite finding technical violations of unauthorized practice rules.
Two concerns motivated the court's determination to dismiss the case.
Bar Counsel was aware that the attorney had a Maryland office (the basis of the only sustained charge) since 2015 and waited 3 1/2 years to pursue charges.
Second, the attorney had fully cooperated in the office investigation of her then partner (who was subsequently disbarred for a felony conviction) and disclosed to Bar Counsel her office situation.
The Assistant Bar Counsel who prosecuted the partner met with the Respondent and made substantive suggestions to comply with unauthorized practice rules.
Respondent followed Bar Counsel's advice.
Nonetheless, she was prosecuted based on an anonymous complaint and after she had relocated her office to DC.
This attorney grievance matter involves an attorney who is licensed in the District of Columbia and not in Maryland. The attorney is a partner in a law firm that employs Maryland attorneys. In 2014, the attorney moved the law firm’s office from the District of Columbia to Maryland. In 2015, the Office of Bar Counsel met with the attorney in her office and made specific recommendations for maintaining an office in Maryland. Three and one-half years later, after receiving an anonymous complaint, the Attorney Grievance Commission opened an investigation into the attorney’s alleged unauthorized practice of law. Although the Court of Appeals concluded that the attorney violated the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 19-305.5, the Court determined that, given the significant and unusual mitigating factors that were present in this case, it would impose no sanction and that dismissal of the proceeding was appropriate.
After rejecting Bar Counsel's laundry list of alleged violations
Because we have determined that Ms. Jackson’s physical presence in Maryland did not fall within the federal practice exception (or any other exception), we are constrained to give effect to the plain language of Rule 5.5(b)(1) as presently adopted, and to sustain Bar Counsel’s exception that Ms. Jackson’s conduct in maintaining an office in our State was in violation of that rule.
Although we are constrained to apply the plain language of the Rule, the facts of this case (and changes to the modern practice of law) have caused us to reflect on its continued wisdom. Specifically, we question whether a rigid prohibition based solely upon geographic considerations of physical presence remains an appropriate litmus test for determining whether an individual is engaged in the unauthorized practice of law in our State. As discussed below, we observe that some states have departed from this formalistic approach.
The court further rejected purported aggravating factors asserted by Bar Counsel and found extensive mitigation.
The hearing judge commented on the prejudicial effect that Bar Counsel’s “extraordinary delay” had on Ms. Jackson’s ability to defend the charges that were ultimately filed against her:
Regardless of Bar Counsel’s reasons for this delay, its consequences are particularly evident from the record in this case. Given the passage of time, most witnesses do not remember details of the allegations contained in the Petition. Lack of specificity from witnesses due to length of time would relieve [Bar Counsel] of its burden. This also places [Ms. Jackson] in the awkward position of trying to defend her actions when, in fact, she cannot recall them either. Even if the prejudice resulting from this extraordinary delay is not a dispositive factor in this case, it should certainly be considered as a mitigating factor in the ultimate outcome. (Emphasis added).
We agree with the hearing judge’s characterization of the delay presented in this case. Not only was Ms. Jackson prejudiced in having to explain her signature on two lines many years after they were filed, but she was also prejudiced by Bar Counsel’s actions in giving her recommendations on how to maintain an office in Maryland and then waiting three and one-half years to raise its concerns.
The Rule 5.5(a) violation relating to the lines seeking reissuance of a summons occurred in 2012—some six years prior to Bar Counsel’s investigation and before Ms. Jackson moved her office to Maryland. The hearing judge found that the lines were filed during a tumultuous time in Ms. Jackson’s life where an accidental filing of this nature was certainly understandable. Bar Counsel did not establish any other conduct by Ms. Jackson that constituted the unauthorized practice of law in Maryland. To the contrary, as the hearing judge observed, all the witnesses who testified in this case—including those witnesses called by Bar Counsel—confirmed that Ms. Jackson has never held herself out to be a Maryland lawyer, nor has she ever represented a client in a Maryland court. She limited her practice to matters arising in the District of Columbia.
As for the violations of Rule 5.5(b), Ms. Jackson promptly placed the appropriate jurisdictional limitations on the firm website, letterhead, her business card, and email signature after Senior Assistant Bar Counsel recommended that she do so. And we cannot ignore the fact that the Office of Bar Counsel knew that Ms. Jackson was practicing from an office in Maryland and gave her specific recommendations for how to maintain her practice. Ms. Jackson complied with Bar Counsel’s suggestions. Having done so, it was reasonable for Ms. Jackson to assume that her physical presence in Maryland was not an issue. Had Ms. Ridgell raised any concern with Ms. Jackson at their meeting in June 2015 about her office location, given Ms. Jackson’s record of compliance with Bar Counsel, there is no reason, based on the record in this case, to believe that she would not have addressed any concerns related to her physical presence at that time.
Remarkably, Bar Counsel objected to the deposition testimony of her predecessor.
The trial court erred in excluding it
The hearing judge sustained Bar Counsel’s objection to the introduction of [former Bar Counsel]] Grossman’s deposition transcript, reasoning that the witness could have “Zoomed in from Naples.” Ms. Jackson excepts to the hearing judge’s failure to admit the deposition testimony into evidence. We sustain this exception. Ms. Jackson was entitled to admit Mr. Grossman’s deposition transcript pursuant to Maryland Rule 2-419(a)(3)(B) because the deposition was properly noted, Bar Counsel attended the deposition, Mr. Grossman was out of the State, and Ms. Jackson did not procure his absence. There is no “Zoom exception” to the witness unavailability rules, and Ms. Jackson was entitled to rely upon the Maryland Rules as written. Mr. Grossman’s deposition testimony highlights the policy changes in the Office of Bar Counsel during the period between Ms. Ridgell’s 2015 visit to Ms. Jackson’s office and the filing of charges in this matter in 2020. Mr. Grossman acknowledged that “there were a number of ways that I pursued [the job of protecting the public.]” Although “one way was to prosecute those who violated the Rules of Professional Conduct[,] . . . another way was to educate lawyers on their ethical obligations so that they wouldn’t have to get into trouble and the public would be protected in that way.” When asked whether staff counsel such as Ms. Ridgell would “have occasion to engage in a dialogue with attorneys to help them meet their ethical obligations,” Mr. Grossman confirmed that such a practice “would happen” during his tenure as Bar Counsel.
When I heard the oral argument and read the trial court opinion, I was hard pressed to understand the wisdom of this prosecution.
The court's opinion confirms that view. (Mike Frisch)