162 A.3d 970
Md.2017Background
- Allen R. Dyer and Susan B. Gray represented citizens mounting a Howard County zoning referendum; the campaign produced highly contested administrative and circuit-court litigation over petition form, sufficiency of signatures, and a required “fair and accurate” summary.
- Multiple related circuit cases were consolidated (and docket entries reflected closure of several underlying case numbers), prompting contested filings and multiple interlocutory/appellate petitions by Respondents.
- Normandy (opponents) pursued broad discovery, served subpoenas and deposition notices for many petition circulators; Respondents sought protective relief and advised clients about First Amendment concerns; many witnesses did not appear for noticed depositions.
- Opposing counsel, Erskine, filed complaints with Bar Counsel alleging misconduct (frivolous appeals, advising clients to disobey discovery orders, disparaging statements about judges). Bar Counsel requested responses from Respondents.
- Gray submitted substantive responses to Bar Counsel (and adopted Dyer’s concerns about confidentiality); Dyer refused to provide substantive answers, instead challenging Bar Counsel’s authority to conduct confidential investigations on constitutional grounds and declining to participate in “secret” proceedings.
- The Court of Appeals: sustained hearing judge’s factual findings largely exonerating both lawyers on alleged ethical violations, but held (1) Dyer violated MLRPC 8.1(b) by failing to meaningfully respond to Bar Counsel and (2) Gray committed no proven violation. Remedy: public reprimand of Dyer; charges against Gray dismissed; costs assessed against the Commission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Respondents violated MLRPC 8.1(b) by failing to respond to Bar Counsel | Commission: both lawyers failed to answer lawful Bar Counsel requests; refusal impeded disciplinary process | Dyer: constitutional objection to confidential investigation; Gray: substantive response and adoption of some points | Dyer violated 8.1(b) (reprimand). Gray did not (charges dismissed). |
| Whether Respondents violated other MLRPC (1.1, 1.3, 1.4, 3.1, 3.2, 3.4, 8.2, 8.4, etc.) through appellate filings, discovery tactics, and public statements | Commission: repeated frivolous appeals, obstruction of discovery, false or reckless statements about judges, conduct prejudicial to administration of justice | Respondents: zealous advocacy, good-faith legal positions on consolidation/docketing, First Amendment concerns for circulators, no intent to deceive or obstruct | Court: hearing judge’s findings largely upheld; Commission failed to prove other violations by clear and convincing evidence; most charges dismissed. |
| Appropriate sanction for confirmed violation(s) | Commission: disbarment | Dyer/Gray: dismissal or no discipline | Court: reprimand for Dyer (single 8.1(b) violation), dismissal of charges against Gray; costs assessed to Commission. |
| Allocation of costs for the disciplinary proceeding | Commission sought costs assessed against Respondents | Respondents argued unfair given most charges not sustained | Court assessed costs against the Commission (not against Dyer or Gray). |
Key Cases Cited
- Bridges v. Attorney Grievance Comm'n, 360 Md. 489 (2000) (lawyer who answered Bar Counsel by challenging jurisdiction violated MLRPC 8.1(b); reprimand precedent)
- Butler v. Attorney Grievance Comm'n, 441 Md. 352 (2014) (failure to respond promptly to Bar Counsel supports reprimand under MLRPC 8.1(b))
- Weiers v. Attorney Grievance Comm'n, 440 Md. 292 (2014) (reprimand where failure to cooperate with Bar Counsel coupled with other rule violations; factors for sanction)
- Allenbaugh v. Attorney Grievance Comm'n, 450 Md. 250 (2016) (framework for sanctions: rules violated, mental state, injury, aggravating/mitigating factors)
- Chanthunya v. Attorney Grievance Comm'n, 446 Md. 576 (2016) (standard of review in attorney discipline: clear-error for findings of fact; de novo review of conclusions of law)