Forty-three attorneys were suspended in March in one order from the Court of Appeals, but not for any sort of legal malpractice. Instead, they were punished for not providing their Social Security numbers to the Client Protection Fund of the Bar of Maryland in violation of a recently adopted Maryland Rule.
Now, two of those attorneys have filed suits in U.S. District Court in Baltimore alleging the new rule violates federal privacy laws. One complaint, from Federal Trade Commission lawyer Michael Tankersley, was filed May 22. A hearing on the other complaint, filed in April by Virginia and Maryland solo practitioner Marc Alan Greidinger, is scheduled for the end of June.
“Our concern is this is completely unnecessary for the Bar to administer its functions, invades Mr. Tankersley’s privacy and is a violation of federal law,” said Scott Michelman, a lawyer for Tankersley with the Public Citizen Litigation Group in Washington.
Both lawsuits name as defendants the trustees of the Client Protection Fund and the seven judges on the Court of Appeals. All of the defendants are being represented by the Office of the Maryland Attorney General. Spokesman David Paulson said he could not comment on the lawsuits because the litigation is pending.
Under the state code, the Client Protection Fund has been required since 1993 to provide Social Security numbers “to determine whether each lawyer has paid all undisputed taxes and unemployment insurance contributions.” The state code also classifies the Court of Appeals as a “licensing authority,” meaning it has been required since 1997 to record Social Security numbers for the collection of any unpaid child support.
Since the early 1980s, the Board of Law Examiners “for its own purposes” has required applicants to disclose Social Security numbers, according to a Rules Committee report issued in September. The Client Protection Fund, which used to obtain Social Security numbers from the Board of Law Examiners, began requiring lawyers to submit them along with their annual fee approximately five years ago, collecting the information on behalf of the Court of Appeals, according to the Rules Committee report. Most attorneys complied, but as many as 9,100 lawyers refused at one point, according to the Rules Committee report.
With no way to enforce the reporting requirement except going through the Office of Bar Counsel, the Court of Appeals passed a new rule in November giving it the power to suspend any lawyer who does not disclose his or her Social Security number. But both lawsuits argue the rule violates the federal Privacy Act, which prohibits a state agency from denying an individual a “right, benefit or privilege provided by law” because of a refusal to disclose a Social Security number.
At least one lawyer made the same argument last year to the Rules Committee as it considered the rule, according to the committee report. But the committee investigated the claim “and [was] convinced that, due to other federal enactments,” the rule did not violate the Privacy Act, according to the committee report.
Tankersley was admitted to the Maryland Bar in 1986, Greidinger in 1990, according to their lawsuits. Both were members in good standing prior to their suspensions in March, according to their lawsuits. They also argue in their lawsuits the licensing authority of the Court of Appeals only covers “applicants” under state law, while the Client Protection Fund can alternatively give the comptroller tax identification numbers, which Greidinger supplied.
Tankersley’s suspension from practicing in Maryland has not affected his livelihood, according to Michelman. But Greidinger, who lives in Virginia, unsuccessfully sought a temporary restraining order to allow him to continue to practice in the state during his litigation. Judge Richard D. Bennett instead entered an expedited scheduling order, leading to a hearing June 25.
In addition to their legal arguments, Tankersley and Greidinger have a personal reason for not wanting to disclose their Social Security numbers — both have been victims of identity theft.
“Years ago, someone who didn’t want to reveal their Social Security number was seen as off the beaten path,” said Jeffrey R. White, a lawyer for Greidinger and senior litigation counsel with the Center for Constitutional Litigation P.C. in Washington. “The notion that anyone has carte blanche to build a database [with personal information] is a little out of step now.”
The cases are Tankersley v. Almand, et al., 1:14-cv-01668-RDB and Greidinger v. Almand, et al., 1:14-cv-01454-RDB.