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Discovery dispute slows ethics case against Montgomery judicial candidate

Marylin Pierre

The underlying petition against Marylin Pierre claims, among other things, that she repeatedly misrepresented or failed to disclose information about legal action taken against her in the 1990s.

A disagreement over whether Maryland Bar Counsel must turn over written discovery in ethics cases has paused the proceedings against a candidate for Montgomery County judge who stands accused of making false statements during a previous campaign.

Maryland’s Court of Appeals stayed the action against Marylin Pierre, who ran for a seat on the Montgomery County Circuit Court in 2020 and is running again in 2022, after her lawyer raised concerns about recent revisions to the rule governing discovery in attorney discipline cases.

“Bar Counsel has taken the position that, from now on, ‘Rule 19-726, as amended, does not permit respondent attorneys to propound written discovery,'” wrote Pierre’s lawyer, Irwin Kramer. “According to Bar Counsel, the defense has lost its right to conduct such discovery in all pending and future cases.”

Bar Counsel Lydia E. Lawless has taken the position that the amended rule only allows respondents’ lawyers to receive materials collected during an investigation into alleged attorney misconduct, not to seek further written discovery.

The amendment “ensures that all discoverable information in the commission’s and bar counsel’s possession is promptly disclosed without the respondent having to propound written discovery requests and guarantees that the quality of the disclosure is not determined by the respondent attorney’s drafting of discovery requests,” Lawless wrote in a response filed Monday.

The rule recognizes that the Attorney Grievance Commission is more similar to the state in a criminal proceeding than a civil litigant, and that bar counsel acts like a prosecutor’s office in pursuing disciplinary action, Lawless wrote.

The amendment also addresses the fact that bar counsel and the commission cannot respond to interrogatories because they lack personal knowledge of the incidents that led to the disciplinary petition, she wrote.

The court will discuss revisions to the rule at an open meeting on March 30.

Kramer asked the Court of Appeals to intervene after a hearing judge granted a protective order shielding bar counsel from discovery requests. Kramer also sought to depose Lawless after his discovery requests were rebuffed, but Anne Arundel Circuit Judge Elizabeth S. Morris quashed that request.

Lawless was represented by Timothy F. Maloney in those proceedings.

Kramer argued that the amendment to rule 19-726 was not intended to create an “unlevel playing field.”

“This Court never expressed any intention to favor one party over another as Bar Counsel has urged,” Kramer wrote. “To shield Bar Counsel from the same discovery obligations to which Respondent must adhere would provide this prosecutor with an extraordinary advantage in the litigation process and subvert the level playing field which this Court sought to provide.”

Maryland Court of Appeals Chief Judge Joseph M. Getty stayed the case following Kramer’s emergency filing.

The underlying petition against Pierre claims that she repeatedly misrepresented or failed to disclose information about legal action taken against her in the 1990s, when she allegedly defaulted on several student loans, evaded service of court summons in Montgomery County and ultimately was taken into custody for less than a day after failing to appear in court.

It also accuses her of misrepresenting her legal experience and of making “knowingly and intentionally false” statements about sitting judges in Montgomery County during her failed judicial campaign in 2020.

Pierre ran against a group of sitting judges — Bibi Berry, David Boynton, Christopher Fogleman and Michael McAuliffe — after a surprise win in the Democratic primary.

The petition alleges that Pierre made false statements about the sitting judges on her campaign Twitter account, including that some judges sent defendants to jail because they “could not speak English” and that the sitting judges “are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.”

The statements were “knowingly and intentionally false or made with reckless disregard as to their truth or falsity and impugned the integrity of the sitting judges,” the petition against Pierre claims.

Kramer has alleged that the disciplinary petition was politically motivated. In his discovery requests, Kramer sought any communications between Lawless and people involved in the judicial campaign.