commentary

Disbarred for bad mouthing judges, prosecutors and public defenders

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.

Posted by Bruce Godfrey in commentary, Legal Ethics, 0 comments

Annual St. Patrick’s Day Don’t Kill People Post

In 1997, a drunk driver killed my closest friend from law school, her brother, her sister-in-law and her infant niece in a one-crash accident in a residential neighborhood north of Miami right around “bar time.” The drunk driver fled the scene, having in no manner attempted to render aid to the wounded or even to have called the police, the fire fighters to douse the burning car or the EMTs to the scene of the crash. My friend had gone to the airport to collect her family and bring them home from a late flight arriving in the wee hours; the crash occurred within about a mile of her parents’ home on the ride back. The drunken motorist has been serving a life sentence arising out of the incident.

Over 16 years later, after one marriage, one divorce, two sons with autism, several major career metamorphoses, the relocation of my residence maybe 7 times and many personal lows and highs, it still hurts. I don’t think about my friend daily now, but rare is the week when I don’t think of her.

I represent accused drunk drivers and do so without apology. It is necessary work constitutionally and deserves to be done well. The accused deserve competent and diligent representation; “competent” and “diligent” aren’t a brag but the merest ethical “opening bid” for practicing law. But the following is about not hiring me or any other Maryland attorney for a DUI charge, by not catching the charge in the first place. St. Patrick’s Day is less than 10 days away and a lot of fools use it as a rationalization for driving drunk.

Cabs look expensive, but aren’t. Okay, $100 cab ride is epic, but if you get held on a DUI bail (not that common in MD but it does happen), you are going to kill that amount and more on the fee to the bondsman before you get sprung. The highly skilled professionals at Big Boyz or Fred Frank or Busting Out All Over Bail Bonds have one thing in common: not a damn one of them is a pro bono operation. You will lose that cab fare before you get sprung. If you can get sprung, if you aren’t in a hospital cell with a deputy watching over your wrecked, burned body.

Lawyers are expensive. Even cheap lawyers are expensive; some say that a cheap lawyer is the most expensive thing ever invented. When you get a services agreement from an attorney, even if there’s no “accident”, even if you have no priors, you are probably going to have to tap savings or get a loan from somebody. If you can afford to get lit on St. Patrick’s Day, you probably aren’t indigent, which means that you probably shouldn’t be a public defender client.

Rehab and alcohol treatment cost money. My favorite alcohol assessment resource in Baltimore County is very good and costs around $200.00 to open, and the weekly visits won’t be cheap either. Does the $100 cab ride back home look cheap?

Then there’s the interlock. Without getting into the specifics of Maryland law, refusing or failing the breath test may result in pre-trial license suspension, unless the motorist arranges for the installation of an interlock device. The interlock isn’t free; the providers of interlock installation and monitoring aren’t Communists or hippies. If you live in the suburbs and you face a license suspension, you may lose your job if you cannot drive to work. More money for the install and for the monthly monitoring.

There are the indirect costs of lost time. If you need to go to an AA meeting on direction of your attorney or your alcohol counseling provider, that’s time you cannot bill/earn on the clock. If you need AA you should absolutely go there for its benefits, but AA meetings have set start and stop times; when you are there, you aren’t earning.

It should shock no one to learn that GEICO’s Gecko and that camel from “Hump Day” aren’t exactly looking for an opportunity to do business with drunk drivers. They hate paying out money and drunk drivers are nothing but liabilities to them. While you might not get cancelled, you will probably suffer severe consequences from a drunk driving charge on your rates. Do you want to cover the costs of the town drunk’s wreckage? Neither does “Hump Day” or the lizard.

People do go to jail on first-time DUIs sometimes, even in relatively moderate Maryland. The bench in Baltimore County has shown an increasing willingness to jail defendants at least briefly on jailable traffic offenses, especially for DUI defendants who show up to court with no alcohol treatment plan in place. If you are convicted or found guilty, you will be fined, have to pay probation fees and related costs.

Then there are the intangibles. A lot of fair-minded people don’t want to date someone who drives drunk. If you get caught drunk driving, you may have to face the humiliation of your spouse seeing you having done this stupid thing. Your infant children won’t know (if you are lucky), but your teenage children will lose respect for you (as they probably should.) Your boss, if she finds out (and she probably will), may conclude that you are a screw-up and cannot be trusted with more responsibility. You may find it difficult to face yourself in the mirror after you come home.

If you are religious, you will probably have to account for this act of recklessness in your religious life, as no religion makes peace with getting drunk and risking other people’s lives. Specifically, the Catholic Church (which, after all, canonized St. Patrick) condemns drunk driving and reckless risk to human life generally in its Catechism of the Catholic Church:

…one is not exonerated from grave offense if, without proportionate reasons, he has acted in a way that brings about someone’s death, even without the intention to do so. (2269)

Those incur grave guilt who, by drunkenness or a love of speed, endanger their own and others’ safety on the road, at sea, or in the air (2290).

No moral or disciplinary law of the Catholic Church requires drinking or eating anything on St. Patrick’s Day, which falls during the ascetic and penitential season of Lent in the Roman Rite calendar.

Maybe the biggest intangible should be the end of your life or the life of another person. Drunk driving fatalities aren’t a talking point; they are physical piles of dead human flesh that EMTs have to drag and bag out to the hospital or the morgue. Some poor soul has the job of counting, identifying (preliminarily) and removing the road kill of the drunk driver. That roadkill could be you, if you drive off the road and your car catches fire in a crash. You could kill some teenager, some family of four. Drivers’ licenses numbers should start with 007; every license is, in a certain sense, a license to do something that sometimes kills people. Maybe this video can make the point more concretely than I can:

Hat Tip to Scott Greenfield, Esquire.

If you really need to party on St. Patrick’s Day, please be sensible. Restrain your consumption, or be the designated driver. If that doesn’t work, get a cab and if necessary a hotel/motel room, sleep off your drunk watching reruns of Seinfeld on the hotel TV. Get drunk at home and carry on there, if you must.

If you have to do something stupid with a piece of equipment while drunk, then “drunk dial” and not drunk drive. You may annoy your “ex” with your drunken call, or cause yourself other embarrassment with your boss, but at least they won’t have to attend your funeral and you will be around to face your humiliation. If you think you shouldn’t drunk dial, then dial the cab.

Nancy Sara Yellin, 1969-1997. May her family and those of her brother, sister-in-law and infant niece, be comforted.

Posted by Bruce Godfrey in commentary, Godfrey-personal, 0 comments

Top ten things you need to know about practicing law in Maryland.

To young lawyers, new lawyers and visiting lawyers, here’s your top ten things to know about starting up in this state as a practicing lawyer in the view of one opinionated Baltimore County solo attorney.

1) Small.  This is a small state with a fairly sophisticated Bar, a very diverse one.  But it’s small.  If you get a reputation for being a jerk or an incompetent, it’s 4 degrees of separation, not 6.  And if you are connected in anyway to Loyola High School, it’s 2 degrees, starting with half the Baltimore County bench (as well as this attorney, ’87.) I am not advocating any of the foregoing, just describing it accurately.

2) Local Rules.  This rule has two parts: a) there are no local rules; and b) part a) is complete BS.  More accurately, the Rules use the word “may” a lot and “shall” less often.  How these rules get interpreted locally varies; get help if you are at risk of getting “hometowned.”

3) There is no “typical” Maryland court. Essentially, Maryland is 6 or 7 ministates united by a tax form.  The distance from Hagerstown to Bethesda is about 60 miles, but culturally it’s about the distance from Hagerstown to Brooklyn Heights.  Baltimore and Bethesda are 40 miles apart but they are different worlds, united by a tax form. Don’t even go to the Shore for legal business without local advice.

4) Judicial districts and circuits don’t matter. OK they matter internally for budgeting and assigning judges, but they don’t matter.  No one talks about circuit or district numbers except for lawyers doing criminal marketing mailings, and even they don’t talk about them but simply acknowledge them on the database.  They don’t matter; you will never see a reference to them on a pleading.  Counties and Baltimore City matter; counties often have very strong powers of home rule in a manner completely foreign to New Englanders who bumble in.

5) Contributory negligence is real.  If you utter “comparative fault” in this state you get the shocked looks that you deserve from working lawyers. Someday it may change if the insurance lobby stops seed-spreading the cash.  Until then, expect to have a bear of a time with slip and fall cases.

6) It’s a fairly forgiving Bar here.  Maryland ethics rules are fairly forgiving on some of the esoteric advertising nonsense that we hear out of Florida (e.g. no flags?).  Then again, Florida has to put up with “Florida Man” and we don’t. Annual bar dues have been the lightest in the country for many years and the bar association is voluntary (which in my view makes it better).  CLE is not mandatory, which in my view also makes it better.  How to stay out of trouble?  Be honest; don’t mishandle other people’s money; know what you are doing and do it promptly, and don’t be a disgrace.  The rest is commentary.

7) Sanctions are used sparingly in state and federal court. Both state rules and the local federal rules discourage sanctions filings in theory and in practice.  In the state systems, fee sanctions are remedial, not punitive.  I have asked for sanctions against opposing counsel three times in my career, and regretted it once.  Moral to the story: don’t make yourself a test case, as you will stand out.

8)  The Annotated Code of Maryland is the official code.  Righteous people who adhere to the Blue Book (which, to my knowledge, has not been made a canonical resource by the Court of Appeals through any official act) will tell you to cite the Code as “Md. Code Ann.” rather than “Md. Ann. Code.” Someone in Massachusetts actually gets paid to issue this rule to us.

9)  You should go to Ocean City in June if you can.  The MSBA puts on a rather good show, good spread, lots of CLE, most of it very good from working lawyers.  You deserve a deductible trip downyocean to learn.

10)  Bar members here are, in my experience, exceptionally generous.  When I was coming up in the Bar, I was too intimidated to seek out advisers, to ask for help.  Part of why I give back now is that I don’t want young lawyers to make my mistake.  Lawyers in this state are almost always freely giving of their time to young attorneys when they can, and that’s a very good thing (and something I wish I knew when I was 25.)  The MSBA list-serv for small firms and solos is an excellent example of this.

Posted by Bruce Godfrey in commentary, Godfrey-personal, Maryland law - general, 0 comments

The latest from the narcissists at American Registry

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Words have meanings.  “Excellence” and “success” have meanings.  Neither has anything to do with the content on this plaque.  Plus the plaque tells a lie about its intended customer, as beaten to death in a prior post.

Posted by Bruce Godfrey in commentary, Legal Ethics, Legal Marketing, 0 comments