Easton Star-Democrat, December 10, 2012:
Former Queen Anne’s County Deputy State’s Attorney John Mark McDonald faces allegations of professional misconduct during his time at the state’s attorney’s office.
…
The petition, filed Sept. 12, alleges McDonald engaged in an inappropriate relationship with a co-worker at the state’s attorney’s office, Melissa Knotts, the former office manager, who pleaded guilty to embezzlement charges from that office in October 2011. It alleges McDonald allowed Knotts to take leave she wasn’t entitled to, that he nol prossed five traffic citations as favors to her and he attempted to interfere with her prosecution.
…
In the response filed Oct. 18 on McDonald’s behalf by his lawyer David G. Whitworth Jr., McDonald denies all allegations against him, admitting only that he is a lawyer, that he worked as deputy state’s attorney and now has a private law practice and that the state’s attorney’s office prosecuted Knotts. He asked the court to dismiss the petition.
Several things are worth noting.
First, it is extremely rare for prosecutors to face public Bar discipline for any misconduct. I am aware of only one prosecutor who has ever received Bar discipline (reprimand or worse) for his conduct in office and that prosecutor was Doug Gansler, Esquire, now Attorney General of Maryland, for alleged improper pre-trial publicity against a defendant. Prosecutorial incompetence or malfeasance simply don’t wind up in public discipline often; one would like to think that that is because prosecutorial incompetence or malfeasance never occur in Maryland, but that’s probably too optimistic.
The second thing is that the accusations involve not alleged damage to a defendant – such as by willful withholding of exculpatory evidence or other Brady violations – but for allegedly helping a defendant too much. I am much more concerned about prosecutions without probable cause and deliberate Brady violations than I am about some speeding tickets getting dismissed, unless it were for a financial bribe (which is NOT part of the accusations according to the news report.)
The third thing is about the difference between small-town practice and metropolitan practice. An attorney whose practice is familiar to me in Baltimore and Harford County faced a recent entire disciplinary proceeding without it becoming local news. The respondent in this case over in Queen Anne’s County is a a former prosecutor and now a private attorney. While his former public service makes the case of greater interest, it’s unusual to read about the early stages of attorney discipline at the Circuit Court level. Normally one hears about such cases only when an attorney is about to face, or has faced, a legal review with disciplinary sanctions arguments before the Court of Appeals. This is in part “small town news” and in part a result of the position which the respondent once held.
The standard of proof for attorney discipline in Maryland is “clear and convincing evidence.” The Maryland Attorney Grievance Commission, composed of lawyers and non-lawyers, hears cases privately before making an administrative determination whether a case will go forward to Circuit Court. At Circuit Court, Bar Counsel must prove its alleged rules violations by a standard greater than that required for e.g. a car accident case, but less than “beyond a reasonable doubt” as applies in criminal prosecutions. The fact that Bar Counsel has brought charges should NOT lead anyone to prove that the ethics charges are in fact the final truth of the matter; that’s why disciplinary trials are held – to get the truth. Further, the legal conclusions reached by the Circuit Court are subject to legal review and at least a minimal (“clearly erroneous”) factual review by the Court of Appeals, which has final jurisdiction over discipline IF a legal and factual finding of misconduct is ultimately made. Sometimes a judge will think that a case involves misconduct and the Court of Appeals will reach another conclusion (e.g. Attorney Grievance Commission v. Link.)
While I am pleased that prosecutors do not enjoy blanket immunity from discipline, they should enjoy the full due process rights themselves in the Bar discipline process that they are obliged to uphold in office (with different application in criminal vs. Bar discipline proceedings.) An out-of-county judge from Howard County is being brought in to hear the case; that is proper to avoid the appearance of impropriety due to the specifics of the allegations and the respondent’s role in office.
