Friday, February 3, 2023

Choosing Sides

A remarkable oral argument yesterday before the Maryland Supreme Court involves a matter in which Bar Counsel opened an investigation of a judicial candidate who was challenging incumbent judges 59 minutes after receiving information from the campaign manager of those judges.

While the principal allegations involve statements made by the Respondent in her effort to unseat sitting judges, Bar Counsel also filed, pursued and prevailed before the Circuit Court on charges relating to her 1999 application for admission to the New York Bar. 

There is sharp questioning - particularly but not exclusively from Justice Watts - suggesting concern that Bar Counsel may have engaged in a conflict of interest by inserting herself in an ongoing judicial election for the benefit of the incumbent candidates.

The viewer is free to judge whether there were satisfactory answers to these questions.

Respondent's counsel also suggested that inaccurate/untrue statements made by or on behalf of the incumbents went uninvestigated and unpunished.

In a 2005 law review article, Professor James Moliterno warned about the use of bar sanctions as a political tool of the powerful and entrenched establishment to punish those who take on such interests. 

The court dismissed similar charges in a 2015 decision

This case arose out of a hotly-contested primary election campaign for a position on the Circuit Court for St. Mary's County. An experienced prosecutor in the County sought to unseat a newly-appointed judge who, during the course of his career, had represented defendants in criminal cases in the County. As in many election campaigns, each candidate touted, with some exaggeration, his own experience and credentials. And each candidate disparaged, in various ways and without absolute accuracy, those of his opponent. The question before us is whether there is clear and convincing evidence that a statement in the challenger's campaign flyer was made with knowledge that it was false or with reckless disregard of its truth or falsity and therefore violated the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”).

The Attorney Grievance Commission (“Commission”) charged Respondent Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to qualification or integrity of a judge, public legal officer, or candidate for such office), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue of three statements about his opponent in a campaign flyer circulated on his behalf. Pursuant to Maryland Rule 16–752(a), this Court designated Judge Melanie M. Shaw Geter of the Circuit Court for Prince George's County1 to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law.

Following a hearing at which Mr. Stanalonis was present and represented by counsel, the hearing judge issued findings of fact and recommended conclusions of law. The hearing judge concluded that two of the statements did not violate the MLRPC, but that the third statement violated all of the cited rules, although Mr. Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis excepted to the conclusion that he had violated the MLRPC. We sustain that exception, and, as a result, shall dismiss the charges.

Our earlier coverage of this case is linked here.

It will be interesting to see what the court does with this important case.

UPDATE: Maryland Bar Counsel announced her resignation on February 6, 2023. (Mike Frisch)

Bar Discipline & Process | Permalink


Thank you very much for publishing a decision by judges about potential punishment of attorney speech that, even if it did not mention the Constitution, at least comes down on the right side of the line drawn in the Constitution. And thank you for also including a link to a relevant law review article.

Judges and lawyers (and Americans generally) considering the meaning of crucial words in the Constitution (and the Declaration of Independence) relevant to attorneys’ freedom of speech might like to read related writing in a very recent petition for certiorari to the U.S. Supreme Court. It is available to all for free on the SCOTUS website ( under docket No. 22-684. The petition was written for judicial review, not a law review. So readers interested in understanding the meaning of words “the freedom of speech” and “press” (in the First Amendment) should consider the Reasons for the Writ, starting on page 12.

I wrote the petition and would be happy to receive any relevant insights, comments, suggestions or criticisms at the email address provided on the petition. I would be even more happy if someone wrote an amicus brief supporting the petition.

Posted by: Jack Jordan | Feb 3, 2023 8:15:55 AM

One of the most important First Amendment decisions by SCOTUS was ostensibly a Second Amendment decision, and it was issued by this particular Court only seven months ago. In N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022) the Court reiterated and amplified important aspects of what it wrote in District of Columbia v. Heller, 554 U.S. 570 (2008).

The First “Amendment’s plain text covers” political speech so “the Constitution presumptively protects it. To justify” any “regulation” (punishment) of political speech, each court “must demonstrate” that its “regulation” (punishment) was “consistent with this Nation’s historical tradition” of protecting such speech. Bruen, 142 S.Ct. 2126. Each court “must affirmatively prove that” its putative “regulation” is within this Nation’s long and strong “historical tradition” of protecting speech, assembly and petitioning within “the outer bounds” of such “right[s].” Id. at 2127.

The First Amendment “is the very product of an interest balancing by the people” and it clearly “elevates above all other interests the right of law-abiding, responsible citizens” to use speech and petitioning “for self-defense” against abusive public officials. Bruen, 142 S.Ct. at 2131 quoting Heller, 554 U.S. at 635. “It is this balance—struck by the traditions of the American people—that demands” the “unqualified deference” of all public servants. Id.

Posted by: Jack Jordan | Feb 3, 2023 8:24:10 AM

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