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High court refers dispute over attorney grievance discovery rules to committee

Bar Counsel Lydia E. Lawless. (Submitted Photo)

The Maryland Judiciary’s rules committee will revisit a recent change to discovery rules in cases brought by Maryland Bar Counsel after the revision became a key issue in a pending attorney grievance proceeding.

Maryland’s top court met Wednesday and referred the change back to the Standing Committee on Rules of Practice and Procedure for further consideration.

At issue is whether Maryland Bar Counsel can be compelled to provide written discovery — in addition to the investigative file that must be provided to the defense — in attorney grievance cases.

As written, the amended rule, 19-726, could be interpreted as not allowing respondents to demand written discovery, including interrogatories and requests for admissions, from bar counsel.

Maryland’s Court of Appeals referred the rule for reconsideration after attorney Irwin Kramer, who frequently tangles with bar counsel, asked the high court to intervene in a pending case.

That case involves Montgomery County Circuit judge candidate Marylin Pierre, who is accused of making false statements during her failed judicial campaign in 2020. The Court of Appeals put her case on hold earlier this month after Kramer filed an emergency motion.

Judge Brynja M. Booth began Wednesday’s open meeting by noting that the 2021 rule change was intended to establish “a floor, as opposed to a ceiling,” for discovery in attorney grievance cases.

“I had a concern that there is an interpretation of this rule whereby it could be construed that the discovery rules, the civil discovery rules, no longer apply to the Attorney Grievance Commission,” Booth said.

The Standing Committee on Rules of Practice and Procedure will consider proposed revisions to the rule, including a change to specifically allow respondent attorneys to use civil discovery rules and to allow for members of bar counsel’s staff to be deposed when they have personal knowledge of information pertaining to a case.

(In Pierre’s pending case, Kramer sought to depose Lawless after his efforts to gather written discovery were rebuffed. When Lawless filed a motion for a protective order, citing the new Rule 19-726, Anne Arundel Circuit Judge Elizabeth S. Morris quashed Kramer’s request.)

Judge Shirley M. Watts said Wednesday that she was concerned the rule could be read as removing respondent attorneys’ right to access civil discovery.

“If the rule is read to that conclusion, there could result an inequity in terms of bar counsel having the use of the civil discovery proceedings and the respondents not having access to those procedures,” Watts said.

The judges present at Wednesday’s meeting voted unanimously in favor of Watts’ motion to refer the rule back to the standing committee for further consideration. Proposed changes to the rule will receive a truncated seven-day comment period.

The committee, which is chaired by retired Court of Appeals Judge Alan M. Wilner, is set to meet on April 22.

Kramer said after the meeting that he is encouraged that members of the Court of Appeals also appear to be concerned about the implications of the rule change.

“If we in the legal profession cannot treat our own members fairly, how can we ever expect to do so with respect to others?” he said. “The fairness of the attorney grievance process must be above reproach, and a rule which would permit a prosecutor to use discovery tools that are denied to the defense raises grave concerns over the due process provided to accused attorneys.”

Bar Counsel Lydia E. Lawless declined to comment.

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 judicial campaign in 2020. Pierre is running for judge again this year.