Commentary://September 6, 2023
//September 6, 2023
Default judgments as a sanction for discovery violations are rare. Egregious conduct and failure to comply with multiple court orders usually precede the entry of a default judgment.
And, when a judge enters default judgment, the orders from judges can be scathing. U.S. District Judge Beryl Howell’s Aug. 30, 2023, memorandum opinion in the Freeman v Giuliani defamation lawsuit filed by election workers in the aftermath of the 2020 election is no exception.
While I have witnessed many a judge lecture counsel, including me, rarely have I seen a lawyer get so pummeled by a judge in an opinion. To put it mildly, Howell did not tolerate a lawyer of 50 years flaunting his discovery obligations by failing to provide any discovery or by keeping documents that he knew he should have kept.
If he was subject to jurisdiction in Maryland, Giuliani would probably suffer a severe sanction for violating the Maryland Rules of Attorney Professional Conduct.
As expected, the Maryland Supreme Court has disciplined lawyers for discovery violations and for ethical violations leading to default judgments against clients. The primary MARPC violations are generally violations of Rules 19-301.1 (“Competence. An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”) and 19-301.3 (“Diligence. An attorney shall act with reasonable diligence and promptness in representing a client.”).
Earlier this year, the Maryland Supreme Court disbarred attorney Keith Anthony Parris for his “derelict” conduct in discovery. Attorney Grievance Commission v. Parris, 482 Md. 574 (2023). The court concluded Parris violated Rules 19-301.1, 19-301.3 and others when he repeatedly failed to respond to discovery requests, did not adequately comply with orders compelling discovery, and more. Compounding his problems, Parris exhibited a dishonest or selfish motive when misrepresented facts to the court and his client to conceal his conduct from the court and his client.
Based on Parris and other cases, it seems that the entry of discovery sanctions as a consequence of the attorney’s conduct is a violation of the MARPC. See, e.g., Attorney Grievance Commission v. Bellamy, 452 Md. 517 (2017); Attorney Grievance Commission v. Hamilton, 442 Md. 740 (2015). Unsurprisingly, in many of these cases, the lawyer also lies to the court and clients, thereby also violating Rule 19-301.4 (Communication), 19-303.3 (Candor to the Court), and 19-308.4(c). In other words, the lawyer has ensured his or her own disbarment.
While Parris, Bellamy and Hamilton are the extreme, far too many lawyers play fast and loose with discovery rules. I have often tried to figure out why. I started thinking we, as lawyers, are almost always professional, and discovery issues were simply a matter of a lawyer being too busy. Thus, counsel was not focused on items that were not immediate needs.
Then, I thought about the lawyer who interpreted requests narrowly and zealously fought within the rules to limit discovery from his client for legitimate reasons. A good example of this is motions practice about the scope of Md. Health Occ. Code Ann. Section 1-401(d), Maryland’s medical review committee privilege statute.
Then, I pondered the more nefarious: Far too often, counsel ignore the fundamental tenet of modern discovery rules and simply make things difficult.
It shouldn’t be that way. The modern rules of civil procedure authorize liberal discovery. Yet far too many lawyers make unnecessary objections, delay producing documents, refuse to schedule depositions timely, and throw unnecessary obstacles in the way of what is supposed to be an equal exchange.
It baffles me. All facts are discoverable, and the cost of the gamesmanship can be high. Why risk having your evidence excluded? Why risk unnecessary sanctions? Is it worth it?
Next time you are confronted with such a choice, remember Parris and also the words of Judge Howell: “full and timely compliance with discovery obligations is required for a just determination.”
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, Brodsky has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His column appears on the first Thursday of every month. He can be reached at [email protected].