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Md. high court weighs if judge can order bar-counsel investigation

Underlying case involves Clinton's emails

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FILE - In this Dec. 15, 2017 file photo, former Secretary of State and presidential candidate Hillary Clinton speaks to the GirlsBuildLA Leadership Summit in Los Angeles. Clinton will speak at this year’s Class Day at Yale University. Class Day is an annual event at the New Haven, Connecticut, university that honors achievements in academic, artistic and athletic fields. Past notable speakers include former Secretary of State John Kerry and former Vice President Joe Biden in 2015. In a statement Monday, Feb. 26, 2018, Class Day co-chair and Yale student Josh Hochman says students should emulate Clinton’s “life of resilient and courageous service.” (AP Photo/Reed Saxon)

FILE – In this Dec. 15, 2017 file photo, former Secretary of State and presidential candidate Hillary Clinton speaks to the GirlsBuildLA Leadership Summit in Los Angeles. Clinton will speak at this year’s Class Day at Yale University. Class Day is an annual event at the New Haven, Connecticut, university that honors achievements in academic, artistic and athletic fields. Past notable speakers include former Secretary of State John Kerry and former Vice President Joe Biden in 2015. In a statement Monday, Feb. 26, 2018, Class Day co-chair and Yale student Josh Hochman says students should emulate Clinton’s “life of resilient and courageous service.” (AP Photo/Reed Saxon)

NNAPOLIS – Maryland’s top court appears poised to scrap a judge’s order that the state’s bar counsel investigate for potential ethics violations three of Hillary Clinton’s attorneys who were assigned to separate professional from personal messages on the former secretary of state’s private email server.

Hearing arguments Friday for and against the order, several Court of Appeals judges said counsel falls exclusively under the high court’s jurisdiction – not a trial judge’s – and that the Attorney Grievance Commission’s chief administrative prosecutor has broad discretion regarding the initiation of investigations.

At issue before the high court is the validity of Anne Arundel County Circuit Judge Paul F. Harris Jr.’s order last year that Bar Counsel Lydia Lawless open investigations of David Kendall, Cheryl Mills and Heather Samuelson amid allegations that they deleted evidence of wrongdoing in their review of Clinton’s emails. Then-FBI Director James Comey declined to bring charges in 2016 against Clinton for alleged security breaches and said investigators found no evidence of intentional misconduct by her lawyers.

Harris issued the order based on a motion by attorney Ty Clevenger, a nonpartisan opponent of what he calls the legal profession’s protection of high-profile attorneys in disciplinary matters. Clevenger acknowledged he had no personal knowledge of the lawyers’ wrongdoing but argued successfully that the thousands of allegedly deleted emails warranted a bar-counsel investigation of potential evidence destruction by the lawyers.

The bar counsel’s office, which does not comment on its pending investigations, challenged the judge’s order to the Court of Appeals.

Pressing bar counsel’s case Friday, Assistant Maryland Attorney General Michele J. McDonald told the high court it has “original and complete jurisdiction” over all matters concerning attorney discipline, including the initiation and conduct of investigations, which it has vested in the Attorney Grievance Commission.  In turn, the AGC’s bar counsel – like a criminal prosecutor – has discretion to initiate investigations without being ordered by a trial judge, said McDonald, chief counsel of the attorney general’s courts and judicial affairs division.

“It is always a discretionary decision,” McDonald said of bar-counsel investigations.

But Clevenger defended Harris’ order, telling the high court the mandate did not encroach on bar counsel’s authority but merely directed the office to begin an investigation it was loath to open because of the prominence of the attorneys and their client.

Kendall and Mills became household names when they served as counsel for President Bill Clinton during his Senate impeachment trial in 1999, which ended in an acquittal. Kendall later became senior counsel at William & Connolly LLP in Washington and Mills served as Hillary Clinton’s chief of staff at the State Department.

Samuelson was on Clinton’s failed 2008 campaign for the Democratic presidential nomination.

Double standard?

Clevenger said attorney disciplinary boards are often reticent to investigate such high-profile attorneys but an investigation would certainly be launched against a solo practitioner alleged to have destroyed evidence, Clevenger told the high court.

“There is a double standard if you have the right connections,” Clevenger said.

But Judge Sally D. Adkins said the Court of Appeals, and not any circuit court judge, has the “inherent judicial power” of overseeing attorney investigations and discipline and suggested that Clevenger should have more properly filed his motion for an investigation with the high court.

Bar counsel could reasonably decline to investigate the attorneys in light of the FBI’s findings of no intentional wrongdoing, Adkins added.

Clevenger responded that the FBI and bar counsel are like “apples and oranges,” with the former investigating potential crimes and the latter focused on ethical shortcomings.

But Judge Michele D. Hotten interjected that bar counsel has broad discretion regarding investigations, as Judiciary rules state the office “may file” an action against an attorney.

Clevenger’s bid for an investigation Clinton’s lawyers came amid his call for Texas authorities to investigate Ken Paxton, the state’s Republican attorney general who is now facing trial for alleged securities fraud.

The Court of Appeals is expected to render by Aug. 31 its decision in the case, Attorney Grievance Commission et al. v. Ty Clevenger, No. 64 September Term 2017.


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