In February 2014, following oral argument in January, the Maryland Court of Appeals disbarred an attorney for emailing a number of attorneys, including long-time former Attorney Grievance Commission member George Meng, Esquire, defamatory claims of corruption regarding a number of judges and elected officials including the Attorney General. Opinion of Judge Greene in Attorney Grievance Commission v. Frost here.
Couple of points.
In his dissent, Judge McDonald noted that few attorneys and judges have not commented on the “parentage” of a judge after an unfavorable or disagreeable ruling. The dissent, Judge Adkins’s concurrence and the majority opinion all note that truthful speech protected under NYT v. Sullivan’s First Amendment jurisprudence would not violate Rule 8.2. Judge Adkins goes further to express concern that mere in-office comments or private comments to a spouse about a judge should not generate “word police” supervision by the Court of Appeals (by logical extension, Bar Counsel and the Attorney Grievance Commission.)
Judge McDonald expressed concern that the Court of Appeals should not disbar an attorney through the use of mere pretrial requests for admissions of fact under the Rules of Court; he would have suspended the attorney and remanded the matter for a fuller evidentiary hearing. Judge Adkins did not agree with Judge McDonald on this procedural point. Million dollar judgments can issue from facts admitted my failures to respond to requests for admissions, but this might be a different issue to the extent that the Court of Appeals itself is, in a sense, a party holding at least a trustee interest in the protection of the Bar.
This case involved defamation that a) accused the bench of corruption and not mere incompetence, indifference or obstinance, b) had no known factual basis, c) was not explained in any manner by the attorney in question, d) had no mitigation on the record, due to the failure of the attorney to participate in the proceedings, e) was emailed to many attorneys, including the aforementioned preeminent Mr. Meng, f) involved no advocacy for a client or other fulfillment of any other ethical duty, and g) reflected arguable instability on the part of the author, as suggested in the dissent. Most Rule 8.2 violations will not involve such concerns.
The Court of Appeals has, in my view wisely, not entertained making adultery or sexual relationships in themselves ethical violations unless they involve ethical conflicts in client case work (e.g. divorce cases.) Many attorneys divorce, and some who divorce do so after an extramarital affair or otherwise become intimately involved before a court of equity has signed a decree of absolute divorce. Adultery remains a crime under Maryland law, though one with a maximum fine less than the new proposed state minimum hourly wage of $10.10 per hour. If Bar Counsel found itself drafted into the role of bedroom police, particularly within or after possibly acrimonious divorces involving Bar members, the family lives of attorneys and staff in that office might themselves face strain from the overwork and case volume.
In similar vein, the concern that the Court may find itself compelled to act as the “word police” over the Bar is legitimate, but in my view not realized in the holding in Frost. This case involved a number of facts so extreme and unusual that it is easily distinguishable in future cases involving allegations of improper comments by attorneys, and certainly distinguishable in terms of sanctions in most such cases. The Respondent did not participate in this case; the Court accordingly entertained none of the often-referenced ABA-suggested mitigating factors in its sanctions analysis, not even whether the Respondent had a disciplinary history. In most cases, an attorney default wouldn’t happen; most attorneys want to remain attorneys or to leave the profession by means other than a hard sanction.
In short, though attorney friends of mine have expressed some concerns about AGC v. Frost, I don’t view this case as a threat to the civil or professional liberties of attorneys, short- or long-term.
UPDATE: Check out the much more critical analysis of Indiana attorney Paul Ogden, Esquire, regarding this disciplinary case.