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Md. high court asserts jurisdiction over lawyer discipline

Trial judges cannot order bar counsel to investigate, Court of Appeals says

10.15.13 BALTIMORE, MD- Chief Judge Mary Ellen Barbera, Maryland Court of Appeals. (Maximilian Franz/The Daily Record)

Chief Maryland Court of Appeals Judge Mary Ellen Barbera. (Maximilian Franz/The Daily Record)

Maryland’s top court ruled unanimously Thursday that it has exclusive jurisdiction over attorney disciplinary matters, leaving lower-court judges powerless to order bar counsel to investigate allegations of lawyer misconduct.

The Court of Appeals issued its decision in scrapping a circuit court judge’s order that bar counsel investigate for potential ethics violations three of Hillary Clinton’s attorneys who were assigned to separate official from personal messages on the former secretary of state’s private email server.

“It is beyond question that this court has original and complete jurisdiction over attorney disciplinary proceedings,” Chief Judge Mary Ellen Barbera wrote for the high court. “Because this court, through bar counsel, has the exclusive power to conduct an investigation, a question about whether an investigation was properly conducted or declined under the relevant rule – which we created and administer – is one that only this court may consider.”

At issue before the high court was 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.

Bar Counsel Lydia Lawless, who does not comment on pending investigations, challenged the judge’s order to the Court of Appeals.

The high court said Thursday its exclusive jurisdiction over bar counsel derives from the Maryland Constitution and law, which give it the authority to make rules and regulations governing the practice, procedure and judicial administration in Maryland courts. The court also cited its 2006 decision in In Re: Application of Kimmer that it has exclusive jurisdiction over admissions to the Maryland bar.

“This court created the Attorney Grievance Commission and, subject to our approval, empowered it to appoint an attorney as bar counsel to investigate professional misconduct,” Barbera wrote. “Here, as in Kimmer, this court will not ‘relinquish our exclusive power over’ attorney disciplinary matters ‘to any degree or extent.’”

Lawless declined to comment on the court’s decision.

Clevenger, a Texas attorney, faulted the high court for its silence on his call for an investigation of Clinton’s lawyers.

“The court’s jurisdictional conclusion is a plausible one, but it cleverly sidesteps the real scandal, which is found near the beginning of the opinion: The court refused to hear my cross-petition,” Clevenger wrote Thursday on his blog, LawFlog.

“When Maryland bar prosecutors appealed to the Court of Appeals, they argued that only the COA could compel them to investigate Mr. Kendall, Ms. Mills, and Ms. Samuelson,” Clevenger added. “If that’s true, I responded, then the COA itself should order bar prosecutors to investigate. The COA’s response? It simply refused to hear my argument, and it did so without any explanation.”

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

Clevenger’s bid for an investigation of Clinton’s lawyers came amid his call for Texas authorities to investigate Ken Paxton, the state’s Republican attorney general who has been accused of securities fraud.

The Court of Appeals rendered its decision in Attorney Grievance Commission et al. v. Ty Clevenger, No. 64 September Term 2017.

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