Attorney Grievance Commission v. Dyer

Attorney Grievance Commission of Maryland v. Allen Ray Dyer & Susan Baker Gray,
Misc. Docket AG No. 36, September Term, 2015. Opinion by Getty, J.
ATTORNEY DISCIPLINE – SANCTIONS – REPRIMAND
Court of Appeals reprimanded lawyer who failed to adequately respond to Bar Counsel’s
lawful request that the lawyer respond to the allegations stated in a complaint made against
him that had been filed with Bar Counsel, where the lawyer responded only by challenging
Bar Counsel’s authority to conduct “confidential” investigation under Maryland Rules and
failed to provide any meaningful substantive response to Bar Counsel’s request. Such
conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(b)
(Disciplinary Matters) and 8.4(a) (Violating MLRPC).
ATTORNEY DISCIPLINE – DISMISSAL OF CHARGES
Court of Appeals dismissed charges remaining against first lawyer where there was not
clear and convincing evidence that first lawyer violated any other MLRPC. Court of
Appeals also dismissed all charges against second lawyer where there was not clear and
convincing evidence that second lawyer violated any MLRPC, including MLRPC 8.1(b),
where second lawyer “adopted” first lawyer’s response challenging Bar Counsel’s
authority but also substantively responded to Bar Counsel’s request that she respond to the
allegations stated in a complaint made against her that had been filed with Bar Counsel.
Circuit Court for Anne Arundel County
Case No. C-02-CV-16-0465
Argued: January 5, 2017
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 36
September Term, 2015
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
ALLEN RAY DYER
& SUSAN BAKER GRAY
______________________________________
Barbera, C.J.
Greene,
Adkins,
McDonald,
*Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Getty, J.
______________________________________
Filed: June 23, 2017
*Watts, J., participated in the hearing and
conferencing of this case but recused
herself prior to the adoption and filing of
this opinion.
The road to Maryland’s political graveyard is paved with multitudes of failed
referendum petitions and good intentions of petition circulators and referendum strategists.
The controlling statutes in the Maryland Code, Election Law Article for conducting a
referendum petition drive present a veritable minefield of technicalities that can quickly
scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.
Prior cases before Maryland’s appellate courts demonstrate the difficulties for an
attorney advising clients mounting a referendum petition drive. For example, a signature
on a petition can be declared invalid if it does not reasonably match the citizen’s name as
it appears on the voter registration rolls. Howard Cnty. Citizens for Open Gov’t v. Howard
Cnty. Bd. of Elections, 201 Md. App. 605, 625-29 (2011). Moreover, a county election
board is not required to provide a citizens’ group with prior notice or an opportunity to be
heard before declaring signatures on a referendum petition invalid. Id. at 632. A shorter-
than-normal deadline exists for requesting judicial review of an election board decision,
and failure to meet the ten-day-filing requirement renders the submitted petitions time-
barred. Roskelly v. Lamone, 396 Md. 27, 41 n.18 (2006).
In addition, under the Maryland Constitution’s two-step process for filing
signatures, failure to meet the first deadline by submitting one-third of the necessary
signatures as verified by the local board of elections is a complete bar to the referendum
process. Cf. Selinger v. Governor of Maryland, 266 Md. 431, 436-37 (1972) (holding
petitioners were not entitled to bring bills to referendum where they failed to obtain one-
half of the necessary signatures by the first deadline, as required by the relevant
constitutional provision at that time); see also Md. Const. art. XVI § 3(b) (requiring one-
third of the necessary signatures by the first deadline). In another case, this Court held that
a fatally defective ballot question for a referendum vote regarding the zoning of a property
in Anne Arundel County deviated from the terms of the statute, and thus the election result
was declared void and treated as a nullity. Anne Arundel County v. McDonough, 277 Md.
271, 307-08 (1976).
In this case, Allen Ray Dyer and Susan Baker Gray (collectively, “Respondents”)
represented a group of citizens engaged in a petition drive to take to referendum a zoning
ordinance passed by the County Council of Howard County, Maryland. As Ms. Gray
attempted to navigate the technical obstacle course of the Election Law Article, the
Election Director of the Howard County Board of Elections (“the Board”) issued an
adverse ruling. The Election Director declined to certify the petition for placement on the
ballot, explaining that the petition did not meet the statutory requirement that the petition
must provide a fair and accurate summary of the aspects of the law being challenged.
Next, as Ms. Gray sought judicial review under the shortened deadline set by the
2014 election calendar, the Circuit Court for Howard County failed to notify her of a
hearing on the consolidation of four court cases challenging the Board’s conduct of the
petition process. As the litigation progressed, opposing counsel William E. Erskine, who
represented builders and other business clients in opposition to the referendum effort, filed
complaints against Ms. Gray and Mr. Dyer, who had joined the litigation as Ms. Gray’s co-
counsel, with the Attorney Grievance Commission, Petitioner, alleging misconduct related
to the litigation.
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It is in the context of this complex and contentious underlying litigation involving a
local zoning referendum and petition drive that this attorney discipline proceeding
originated. Under these circumstances, Respondents perceived that the system was rigged
against their clients, and they must have felt like David versus Goliath. But instead of
bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing
the case to Maryland’s appellate courts in response to negative rulings (whether real or
perceived) by the circuit court. And when Mr. Erskine filed his complaints against
Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond
substantively to Bar Counsel’s lawful request for information concerning his position on
the allegations in the complaint against him. Instead, he simply challenged Bar Counsel’s
authority to conduct a “confidential” investigation and refused “to participate in secret
attorney grievance proceedings” on First Amendment grounds.
On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant
Bar Counsel Lydia Lawless filed in this Court a “Petition for Disciplinary or Remedial
Action” against Respondents, charging them with violating Maryland Lawyers’ Rules of
Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2),
1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1
(Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor
Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel),
3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b)
(Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and
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Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct
that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).1
On September 3, 2015, this Court initially designated the Honorable Louis A.
Becker III of the Circuit Court for Howard County to hear this attorney discipline
proceeding. On November 30, 2015, in the Circuit Court for Howard County, Respondents
filed, among other things, a motion to transfer venue. On December 18, 2015, Bar Counsel
filed a response to the motion to transfer venue. On December 23, 2015, Respondents
attempted to re-file in this Court, among other things, the motion to transfer venue as well
as a supplement to the motion to transfer venue. On January 5, 2016, this Court issued an
order denying the motion. Then, on January 29, 2016, upon receiving the Circuit and
County Administrative Judge of the Fifth Judicial Circuit’s request to transfer the case, this
1
Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of
Professional Conduct (“MARPC”) and renumbered. The revised Rules relevant to this
case are now numbered as follows: Maryland Rule 19-301.1 (Competence), Maryland Rule
19-301.3 (Diligence), Maryland Rule 19-301.4(a)(1), Maryland Rule 19-301.4(a)(2),
Maryland Rule 19-301.4(b) (Communication), Maryland Rule 19-301.16(a)(1) (Declining
or Terminating Representation), Maryland Rule 19-303.1 (Meritorious Claims and
Contentions), Maryland Rule 19-303.2 (Expediting Litigation), Maryland Rule 19-
303.3(a)(1) (Candor Toward the Tribunal), Maryland Rule 19-303.4(a), Maryland Rule 19-
303.4(c), Maryland Rule 19-303.4(d) (Fairness to Opposing Party and Counsel), Maryland
Rule 19-303.7(a) (Attorney as Witness), Maryland Rule 19-304.1(a)(1) (Truthfulness in
Statements to Others), Maryland Rule 19-304.4(a), Maryland Rule 19-304.4(b) (Respect
for Rights of Third Persons), Maryland Rule 19-308.1(b) (Disciplinary Matters), Maryland
Rule 19-308.2(a) (Judicial and Legal Officials), Maryland Rule 19-308.4(c) (Dishonesty,
Fraud, Deceit, or Misrepresentation), Maryland Rule 19-308.4(d) (Conduct that is
Prejudicial to the Administration of Justice), and Maryland Rule 19-308.4(a) (Violating the
MARPC). We will refer to the MLRPC because the alleged misconduct at issue occurred
before this change.
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Court designated the Honorable Ronald A. Silkworth (“the hearing judge”) of the Circuit
Court for Anne Arundel County to hear this attorney discipline proceeding.2 On March
14, 15, 16, 17, April 1, 4, 5, and May 5, 6, 9, 10, 11, 13, 19, 20, and 24, 2016, the hearing
judge conducted a hearing. On October 7, 2016, the hearing judge filed in the Circuit Court
for Anne Arundel County a 115-page opinion including findings of fact and recommended
conclusions of law, which was filed in this Court on October 18, 2016. In his opinion, the
hearing judge concluded that Respondents had not violated any of the MLRPC charged.3
On January 5, 2017, we heard oral argument. For the following reasons, we shall
reprimand Mr. Dyer and dismiss the charges against Ms. Gray.
BACKGROUND
The hearing judge made comprehensive findings of fact consisting of approximately
seventy-five pages of his opinion and found the following facts, which we summarize.
On December 29, 1976, this Court admitted Mr. Dyer to the Bar of Maryland. On
December 22, 1987, this Court admitted Ms. Gray to the Bar of Maryland. At all relevant
times, both Respondents maintained solo law practices in Howard County.
A. Howard County Zoning and Referendum Petition Process
The Howard County Zoning Board periodically submits a comprehensive zoning
plan to the Howard County Council (“the Council”) for review and approval. To enact the
2
The Fifth Judicial Circuit includes Anne Arundel, Carroll, and Howard Counties.
3
The hearing judge noted that, following the hearing, Bar Counsel withdrew its allegations
that Respondents had violated MLRPC 3.3(a)(1) and 4.1(a)(1).
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comprehensive zoning plan, the Council must pass an ordinance approving and adopting
it, and the County Executive must sign the ordinance into law. Howard County citizens
may challenge the law, or any portion of it, by submitting a referendum petition to the
Howard County Board of Elections. Howard County Charter § 211. Pursuant to the
Howard County Code, “[t]he form and content of a petition shall be consistent with the
requirements of section 6-103 of the Election Law [Article] of the Maryland Code.”
Howard County Code § 10.402. Thus, a referendum petition must be signed by a specified
percentage of the qualified voters of Howard County, and, among other requirements, must
fairly and accurately describe the aspects of the law that are being challenged.
Section 6-202 of the Election Law Article of the Maryland Code provides for an
“advance determination,” a process by which referendum petitioners may contact the chief
election official of the appropriate election authority—here the Election Director of the
Howard County Board of Elections—and submit to him the proposed format of their
petition, in advance of formally filing it, “for a determination of its sufficiency.” Md. Code
(2002, 2010 Repl. Vol. & 2014 Supp.), Election Law Article (“EL”) § 6-202(a).4 Once the
4
Following the 2014 election, the General Assembly amended EL § 6-202 to make explicit
the requirements of the Election Director when determining the sufficiency of a petition,
which had been implicit in the previous version of the statute. See 2015 Md. Laws, ch. 82.
As amended, the statute specifically states that when referendum petitioners submit a
proposed petition format for review, “the election director of the local board shall
determine the sufficiency of the local law . . . that is contained in the petition.” Md. Code
(2002, 2017 Repl. Vol.), EL § 6-202(b)(1). The statute further specifies that, “[i]f the
election director determines that the summary of the local law . . . is insufficient, the
election director shall provide the [petition’s] sponsor with a clear, concise, and
understandable explanation of the reasons for that determination.” EL § 6-202(b)(2).
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referendum petition is formally filed, if it satisfies all of the required criteria, the Election
Director must certify that the petition process has been completed and that the question has
qualified to be placed on the ballot. In practice, anyone seeking to have a question placed
on the ballot must obtain a final judicial decision regarding its validity some time prior to
the third Monday in August of the year of the election, which is the deadline for the county
attorney to prepare and certify the question to the local board. EL § 7-103(c)(3). In this
case, the relevant deadline was August 18, 2014.
B. Proceedings Before the Board and Initial Filings in the Circuit Court for Howard
County
On July 25, 2013, the Council enacted an ordinance adopting the 2013
comprehensive zoning plan. On August 6, 2013, Citizens Working to Fix Howard County
(“Citizens”), through its officers,5 submitted a proposed referendum petition (“the
petition”)6 to the Board and requested an advance determination of its sufficiency. Ms.
Gray, in conjunction with other lawyers, assisted in preparing and reviewing the petition
before it was submitted to the Board. On August 20, 2013, the Election Director wrote to
Citizens, advising that the petition complied with the technical requirements for formatting
5
Carol Jane Gray and Lisa Markovitz are Citizens’ officers. Susan Baker Gray is not
related to Carol Jane Gray.
6
Howard County, Maryland Charter § 211(a) provides that “[t]he people of Howard
County reserve to themselves the power known as ‘The Referendum,’ by petition to have
submitted to the registered voters of the County to approve or reject at the polls, any law
or a part of any law of the Council.” Stated otherwise, a referendum petition is the process
by which the people of Howard County can refer a law passed by the Council to the people
of Howard County as a whole for final approval or rejection.
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of the front page. The Election Director also advised that the back of the petition must
include a fair and accurate summary of the law at issue, including the law’s substantive
provisions, and that, if only a summary was provided, a full copy of the bill must be
available from the petition circulators. The Election Director stated that he had not made
a decision as to whether the information in the summary complied with all legal
requirements. Thereafter, the petition was circulated by, among others, Ms. Gray and Mr.
Dyer for the required number of signatures. Ms. Gray was also involved in training some
of the petition circulators concerning the legal requirements for gathering valid signatures.
On October 4, 2013, Citizens submitted to the Board a 777-page petition, containing
3,454 signatures. The Board accepted 2902 of the submitted signatures, and in a letter
dated October 21, 2013, the Board advised Citizens that the submitted petition pages
contained a sufficient number of valid signatures to continue the process of gathering
signatures for the referendum process. The Board provided Citizens an additional thirty
days to collect the required number of signatures.
On October 30, 2013, a group of individuals and entities with common interests in
opposing the referendum effort (collectively, “Normandy”) filed in the Circuit Court for
Howard County a petition for judicial review challenging the Board’s October 21, 2013
determination that there were 2902 valid signatures (hereinafter, “Case No. 866”). Mr.
Erskine and Sang W. Oh represented Normandy. In a letter dated November 8, 2013, the
Board advised Citizens’ officers that Case No. 866 had been filed in the circuit court. Ms.
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Gray did not receive a copy of the letter.7 Also on November 8, 2013, the Board filed in
the circuit court a motion to dismiss Case No. 866, arguing that Case No. 866 was
prematurely filed because the October 21, 2013 letter was not a final determination. A
courtesy copy of the motion was sent to one of Citizens’ officers, but not to Ms. Gray.
In a letter dated November 26, 2013, the Election Director advised Citizens that it
had submitted the required number of valid signatures. However, the Election Director
declined to certify the petition for placement on the ballot, explaining that the petition did
not meet the requirement that a fair and accurate summary of the substantive provisions of
the proposal was necessary if the petition sought to place a question on the ballot.
On December 5, 2013, Ms. Gray, on behalf of Citizens, its officers—Carol Jane
Gray and Lisa Markovitz—and other individuals—Frederick Gray,8 Alan Schneider, and
Barbera Sieg—filed in the circuit court a petition for judicial review challenging the
Board’s November 26, 2013 decision that the petition did not contain a fair and accurate
summary of the law (hereinafter, “Case No. 213”).
Also on December 5, 2013, Mr. Erskine and Mr. Oh, on Normandy’s behalf, filed
in the circuit court a second petition for judicial review challenging the Board’s findings
of August 20, 2013, October 21, 2013, and November 26, 2013, concerning the
7
Throughout the referendum effort and the proceedings before the Board, neither Mr. Dyer
nor Ms. Gray represented Citizens. In November 2013, Citizens retained Ms. Gray; in
Spring 2014, Citizens retained Mr. Dyer.
8
Susan Baker Gray is not related to Frederick. Due to the common surname, we shall refer
to Carol and Frederick by their first names.
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determination of the number and sufficiency of the signatures submitted by Citizens
(hereinafter, “Case No. 220”).
The following day, on December 6, 2013, Ms. Gray, on behalf of Carol, Frederick,
Mr. Schneider, and Ms. Markovitz, filed in the circuit court a complaint for declaratory
judgment against the Board and the Election Director, seeking, among other things,
certification of the petition (hereinafter, “Case No. 230”).
On December 9, 2013, the Board, through its counsel, Gerald M. Richman, filed in
Case No. 866 a supplemental motion to dismiss. The supplemental motion sought to
dismiss not only Case No. 866, but also Case No. 213 and Case No. 220; the supplemental
motion, however, was erroneously filed only in Case No. 866. A “service copy” of the
supplemental motion was sent to Ms. Markovitz, but not to Ms. Gray.
On December 11, 2013, the circuit court issued a notice of hearing in Case No. 866,
scheduling a hearing on the motion to dismiss for January 8, 2014. Although Ms. Gray
and her clients were entitled to notice and to appear because their case, Case No. 213, was
the subject, in part, of the supplemental motion, neither Ms. Gray nor her clients received
a copy of the notice of hearing. And, although the time for Ms. Gray to file a notice of
intent to participate in Case No. 866 had expired, Ms. Gray’s clients, and not Ms. Gray
herself, had been notified of the petition for judicial review on November 8, 2013.
According to the hearing judge, the notification was sent before “[Ms.] Gray was
meaningfully retained.”
On December 16, 2013, Normandy filed in Case No. 866 an opposition to the
motion to dismiss; the opposition was not sent to Ms. Gray.
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C. Consolidation and the First Round of Appellate Filings
On December 26, 2013, the Board filed a motion to consolidate all four cases—
Case No. 866, Case No. 213, Case No. 220, and Case No. 230; a copy of the motion was
mailed to Ms. Gray. On January 7, 2014, Normandy filed a “consent” to the Board’s
motion to consolidate in all four cases; a copy of the consent was mailed to Ms. Gray. Also
on January 7, 2014, Normandy filed in Case No. 230, a declaratory judgment action, a
motion to intervene, and answer of interveners; a copy was sent to Ms. Gray. Although,
as of January 7, 2014, Ms. Gray had received the motion to consolidate, she “could not
have received” the consent, motion to intervene, and answer of interveners mailed on
January 7, 2014, the day before the January 8, 2014 hearing.
On January 8, 2014, the circuit court conducted a hearing in Case No. 866 on the
Board’s motion to dismiss. Mr. Erskine, Mr. Oh, and Mr. Richman were present, but
neither Citizens nor Ms. Gray had been notified of the hearing, despite being entitled to
participate. At the hearing, the circuit court confirmed that the hearing was scheduled only
in Case No. 866, and Mr. Oh advised that the three related cases—Case No. 213, Case No.
220, and Case No. 230—were not scheduled for the January 8, 2014 hearing. Mr. Oh also
advised the circuit court of the various motions pending in the four cases. The circuit court
held the motion to dismiss sub curia until the Administrative Judge could consider the
motion to consolidate.9
9
Before the hearing judge, no evidence was presented concerning what, if any, information
was provided to the Administrative Judge by the circuit court, including whether the circuit
court had recommended consolidation of the cases.
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On January 16, 2014, the Administrative Judge issued an order consolidating the
four cases; Ms. Gray did not receive a copy of the order. The order specified that, moving
forward, all pleadings were to be filed in Case No. 866. Also on January 16, 2014, the
Administrative Judge issued an order of special assignment, assigning a specific trial judge
to the consolidated case, renaming the consolidated case, and changing the case number to
“866.” The two January 16, 2014 orders were entered on January 23, 2014. After the
orders were entered, the clerk noted on the docket that Case No. 213, Case No. 220, and
Case No. 230 were “closed/inactive.”
Because she had not heard anything from the circuit court, Ms. Gray went to the
Clerk’s Office and, at that time, learned of the consolidation and the closing by the clerk
of Case No. 213, Case No. 220, and Case No. 230. Ms. Gray also noted what she
considered discrepancies in the captioning of one or more of the cases. Ms. Gray also
learned that a hearing on the Board’s motion to dismiss had been scheduled and held on
January 8, 2014. Due to her concerns about the cases, their status as closed, and the
scheduling and conducting of a hearing without notice to her or her clients, on January 31,
2014, Ms. Gray wrote to the Administrative Judge and the specially assigned judge to
express those concerns and to request that the circuit court take no action on any matter
related to the cases until her clients had an opportunity to file motions to “address the
problems they ha[d] found.” Ms. Gray stated that neither she nor her clients had received
any notice of any activity occurring in the cases, including copies of the circuit court’s
orders. Ms. Gray also stated that, after reviewing the tape of the January 8, 2014 hearing,
the hearing “appear[ed] to be little more than an ex parte meeting between a Judge and
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counsel representing parties opposing the referendum.” According to Ms. Gray, at the
hearing, the circuit court “offered the assistance of certain courthouse staff if opposition
counsel needed assistance.” Ms. Gray also noted that, as of January 30, 2014, all but one
of the notices and orders were missing from the paper files and that neither calendar
management nor the file desk at the courthouse could access those materials.
On February 3, 2014, Ms. Gray filed timely notices of participation in Case No. 866
and Case No. 220. On the same day, Ms. Gray filed a motion to alter or amend judgment,
arguing that, if the January 23, 2014 consolidation order closed Case No. 213, Case No.
220, and Case No. 230, and “blend[ed] the parties and matters” in Case No. 866, “thus
making the claims in the [other] cases effectively nonjusticiable and non-reviewable on
appeal,” then the consolidation order needed to be vacated and the closed cases reopened.
In the motion, Ms. Gray also stated that it appeared that the intent of the consolidation
order “was to eliminate the claims in the other cases by closing them without notice through
the consolidation process, and then to use the [m]otion to [d]ismiss . . . in [Case No.] 866
to get that case dismissed, again without notice.”
In a letter dated February 4, 2014, in response to Ms. Gray’s January 31, 2014 letter,
the Administrative Judge stated that the hearing on the motion to dismiss did not involve
Ms. Gray’s clients, so notice would not have been sent to Ms. Gray, and that no ruling on
the motion to dismiss was made. As to consolidation, the Administrative Judge stated that,
at the hearing on the motion to dismiss, the circuit court, on its own initiative,
recommended consolidation, which, in turn, was communicated to her, and that she found
the recommendation “to be appropriate and efficient for both the [circuit c]ourt and the
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parties.” The Administrative Judge also advised that the specially assigned judge had
recused himself from the case and that the matter had been reassigned. Finally, the
Administrative Judge advised that a status conference had been set for February 19, 2014,
and that all parties and counsel were to be present.10
On February 7, 2014, the Board filed a response to the motion to alter or amend.
And on February 18, 2014, Normandy filed a response in opposition to the motion.
On February 19, 2014, the circuit court held a status conference in Case No. 866,
which was attended by Ms. Gray, Mr. Erskine, Mr. Oh, and Mr. Richman. At the status
conference, in response to the circuit court’s statement that all four cases had been
consolidated and that all of the cases were before the circuit court “as if that was the original
case,” Ms. Gray stated that “three of the[] cases were closed and subject to appeal.” The
circuit court asked Ms. Gray what closed the cases, and Ms. Gray stated that the
consolidation order closed the cases and that, according to the acting clerk, the cases were
closed and subject to appeal. Ms. Gray expressed concern that a pleading filed in the
consolidated case, which referenced a closed case, would “go into a closed case file and
[would] never [be] docketed.” Ms. Gray pointed out that the docket stated that the cases
were closed. The circuit court stated that they could “clear up the docket if that [was] a
10
The hearing judge found that Ms. Gray sought, in good faith, to correct the record and
prevent any future issue like those she alleged occurred with the consolidation order and
“ex parte” hearing. According to the hearing judge, “[Ms.] Gray’s diligence is evidenced
by her trip to the Clerk’s Office to ensure the status of her cases and the respective filings.”
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problem,” but that it was going to proceed and that all four cases were “still alive, they
[were] just under one number, that’s all that’s been done administratively.”
On March 4, 2014, Ms. Gray filed a reply to Normandy’s and the Board’s responses
to the motion to alter or amend judgment, stating, among other things, that although she
agreed with consolidating the cases, closing the underlying cases or making it so the cases
“los[t] their individual identity” was “contrary to Maryland law.” Ms. Gray also alleged
that Normandy’s counsel “went out of their way to make it seem like the decision to close
these cases was an administrative decision made by the Clerk’s [O]ffice.”
On the same day, Ms. Gray also filed a “Motion to Ensure Court Order Reopening
Cases is Effectuated and Motion to Correct the Docket” (“the Motion to Ensure”). In that
motion, Ms. Gray argued that closing the cases after consolidation was inappropriate and
stated that “the full explanation of th[e] process tells a highly irregular and inappropriate
story of potential misconduct.” Ms. Gray further contended that Case No. 866, “under
which all the cases have been consolidated is the most tenuous of all the cases and the one
most appropriately dismissed, which would have happened but for a series of unlikely
events.” According to Ms. Gray, once everything was “cleared up,” the other cases could
proceed “and any remaining details in the record corrected without all the confusion
necessitated by improper and inappropriate actions by counsel for [Normandy], the Board
. . . and its counsel, and the [circuit c]ourt.” In the motion, Ms. Gray requested that Case
No. 866 be dismissed.
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On March 10, 2014, Normandy filed an opposition to the Motion to Ensure, in which
it agreed that any inaccuracies and omissions in the docket should be corrected, but argued
that all other requested relief should be denied.
On March 12, 2014, the circuit court conducted a motions hearing. At the hearing,
the circuit court stated that, although “[t]here may be some issue of the effect of the
consolidation,” all four cases were now one case before the circuit court. Ms. Gray argued
that there were four separate cases, three of them “closed cases with final judgments [and
o]rders in the docket, closing those cases.” The circuit court disagreed that the cases were
closed, explaining, “[T]hey are open. That’s what consolidation does. There is a mistake
in the record, I’m going to correct that.” The circuit court also stated that, although all of
the cases were consolidated into one case, “all of the issues remain.” On the same day,
March 12, 2014, the circuit court issued an order denying the motion to alter or amend
judgment. The circuit court also issued an order denying, in part, and granting, in part, the
Motion to Ensure: denying the motion to the extent that it sought to reopen one or more of
the cases that had been consolidated, but granting the motion to the extent that it sought an
order directing the clerk to correct the docket in each of the cases that had been
consolidated. On March 13, 2014, the two orders were entered.
On March 18, 2014, Ms. Gray filed two notices of appeal in Case No. 866—one
related to Case No. 213 and one related to Case No. 230—that stated, in pertinent part:
“[Carol] Jane Gray, Frederick Gray, Alan Schneider and Lisa Markovitz, registered
Howard County voters and parties below, appeal the decision in this election[-]related
matter entered on March 13, 2014.” On the same day, on behalf of Carol, Frederick, Mr.
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Schneider, and Ms. Markovitz, Ms. Gray filed in this Court two petitions for a writ of
certiorari and a request for expedited review. The petitions were docketed as Petition No.
39 and No. 40, September Term, 2014. In the petitions, Ms. Gray asked “for direct and
expedited review” of the circuit court’s March 13, 2014 denial of the motion to alter or
amend judgment “of its January 23, 2014 closing of this case without any review of its
merits.” Ms. Gray stated that the circuit court had “adjudicated all claims in this action in
their entirety and the rights and liabilities of all parties to the action.” In the petitions, Ms.
Gray posed the following question: “Whether within the context of the decision-making
required by [Md. Code, Election Law] § 6-208(a)(2) the [Board]’s one phrase
determination that the referendum summary was not ‘fair and accurate’ is arbitrary,
capricious and illegal as a matter of law[.]”
On March 21, 2014, this Court issued orders granting the petitions and assigning the
petitions as Case No. 106 and Case No. 107, September Term, 2014. On March 25, 2014,
the Board filed in this Court motions to strike the appeals, stating that the circuit court had
not issued a final decision. On March 27, 2014, Ms. Gray filed a response to the motions
to strike, arguing that there was a final appealable judgment and that, although the circuit
court had stated that closing of the cases was an error on the part of the Clerk’s Office,
Citizens had moved to have the cases reopened eight times and, each time, the circuit court
had denied the motions. Ms. Gray argued that it was “hard to imagine a clearer way the
[circuit] court could have expressed its intent to keep the[] cases closed.”
On April 1, 2014, in this Court, Ms. Gray filed a motion to strike Normandy as
intervenors in the action, and on April 4, 2014, Normandy filed an opposition to the motion.
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On April 8, 2014, in a per curiam order, this Court dismissed the petitions for a writ
of certiorari, stating that “it appear[ed] that the Court lack[ed] appellate jurisdiction
because the [c]ircuit [c]ourt has not entered final judgment and no appealable interlocutory
judgment or collateral order has been rendered.” The Court ordered each party to pay its
own costs and fees, and remanded the cases to the circuit court.
On April 25, 2014, Ms. Gray filed in the circuit court a renewed motion to correct
the docket to reflect that Case No. 213, Case No. 220, and Case No. 230 were open.
D. Initial Discovery and Motions Hearing
On or about February 1, 2014, the Board propounded interrogatories on Citizens,
which referenced Case No. 220 and Case No. 230. Ms. Gray answered the interrogatories.
On February 19, 2014, the circuit court conducted a status conference in the
consolidated case, Case No. 866. At that time, the circuit court declined to stay Case No.
230, the declaratory judgment action, pending resolution of the judicial review matters,
stating that the parties could proceed with filing motions and discovery. The circuit court
established a scheduling order, setting the hearing date for the judicial review and
declaratory judgment matters and setting the merits hearing date for the judicial review
matters. As to Case No. 230, the circuit court stated that the declaratory judgment action
would “be alive and well” even after the ruling on the judicial review cases, and that there
would be “time to file further discovery,” but that there was “no deadline of discovery or a
motion for summary judg[ment] or anything else.”
On February 24, 2014, the circuit court issued the scheduling order, providing that
memoranda on the judicial review matters were to be filed by March 17, 2014, that a
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motions hearing was set for March 12, 2014, and that a hearing on the merits of the judicial
review matters was set for April 1, 2014. In order for the referendum to be placed on the
November 2014 ballot, the Board needed a final judicial decision prior to the third Monday
in August 2014, so that local officials could make the appropriate certifications to the Board
for the November ballot. See EL § 7-103(c)(3).
On March 12, 2014, the circuit court conducted a motions hearing in Case No. 866.
At that time, the circuit court granted Normandy’s motion to intervene in Case No. 230,
the declaratory judgment action, and permitted Normandy to conduct discovery. At the
hearing, the circuit court and the parties discussed holding Case No. 230 in abeyance
pending resolution of the judicial review matters. The circuit court denied Ms. Gray’s
motion for a protective order. The circuit court also heard argument on the Board’s motion
and supplemental motion to dismiss and Ms. Gray’s motion to dismiss; the circuit court
denied the motions.
On March 18, 2014, the parties filed memoranda in the judicial review matters, and
thereafter filed timely reply memoranda. The judicial review matters were set to move
forward with the merits hearing scheduled for April 1, 2014.
E. Postponement of April 1, 2014 Hearing and the Second Round of Appellate
Filings
On March 31, 2014, the Board’s counsel, Mr. Richman, filed a motion to postpone
the April 1, 2014 hearing “for [e]mergency and [l]egal reasons.” Mr. Richman stated that
he had recently been hospitalized and needed to withdraw from the case due to health
issues. Mr. Richman also argued that, because Ms. Gray had filed a notice of appeal in one
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of the judicial review matters, the circuit court could not proceed with the merits hearing
in that matter. That same day, the Administrative Judge issued an order granting the motion
to postpone and striking Mr. Richman’s appearance. The order stated that the circuit court
believed it “maintain[ed] jurisdiction.”
On April 1, 2014, in Case No. 866, Ms. Gray filed a notice of appeal to the Court of
Special Appeals, stating that Citizens was appealing the March 31, 2014 decision of the
circuit court. The following day, on April 2, 2014, Ms. Gray filed a petition for a writ of
certiorari in this Court. In the petition, Ms. Gray argued that the March 31, 2014 order
“struck” the notices of appeal filed on March 18, 2014, and requested that this Court take
jurisdiction in Case No. 866 “even though there ha[d] been no final judgment in th[e]
matter.” Ms. Gray argued that Normandy should not be a party, that the consolidation
happened without notice after a “‘secret’ hearing,” and that if the circuit court retained
jurisdiction, it was doubtful the issue of whether the petition’s summary was fair and
accurate would be addressed “in a meaningful way.” Referencing the irregularities she
perceived in the cases, Gray stated, “The games that have been played and continue to be
played by the [c]ircuit [c]ourt . . . with respect to these referendum cases must stop.”
On April 8, 2014, Normandy filed in the Court of Special Appeals a motion to
dismiss the appeal for lack of appellate jurisdiction, arguing that there was no final or
appealable judgment or order issued by the circuit court. Normandy contemporaneously
filed in this Court an opposition to the petition for a writ of certiorari making the same
argument. On April 9, 2014, the Board, through its successor counsel, Kevin Karpinski,
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filed in the Court of Special Appeals an emergency motion to dismiss the appeal for lack
of appellate jurisdiction.
On April 8, 2014, this Court issued an order dismissing the petition for a writ of
certiorari for lack of appellate jurisdiction. And, on April 25, 2014, the Court of Special
Appeals dismissed the appeal. Neither this Court nor the Court of Special Appeals
suggested that sanctions should be imposed on Ms. Gray for filing frivolous pleadings.
F. Normandy Discovery Part I
As stated above, on March 12, 2014, the circuit court granted Normandy’s motion
to intervene in Citizens’ judicial review case and declaratory judgment action. On April
10, 2014, Normandy filed a counterclaim and crossclaim for declaratory judgment and
injunctive relief (“the counterclaim”), alleging deficiencies with the signatures collected in
support of the petition, including, among other things, the submission of signatures from
individuals who were not registered Howard County voters. In the counterclaim,
Normandy alleged that there were deficiencies with the petition circulators’ affidavits and
that the circulators did not comply with the Election Law Article when collecting
signatures. Normandy requested an order declaring that Citizens had failed to submit the
required number of valid signatures.
On April 16, 2014, Mr. Erskine wrote to Mr. Oh, Mr. Karpinski, and Ms. Gray,
stating that he and Mr. Oh wanted to depose approximately sixty-five to seventy petition
circulators, requiring an average of ten minutes per deponent. Mr. Erskine also stated that
he and Mr. Oh wanted to depose Mr. Schneider, Carol, Frederick, Ms. Markovitz, and Ms.
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Gray. Mr. Erskine provided his and Mr. Oh’s availability for the proposed depositions,
and requested a response from Ms. Gray and Mr. Karpinski.
On April 18, 2014, Ms. Gray responded to Mr. Erskine by email, asking for his
“availability for an emergency hearing next week,” and advising that Citizens would be
filing a motion to strike the counterclaim and a motion for a protective order against the
discovery. In an email sent later that same day, Ms. Gray told Mr. Erskine that “noting
depositions to the circulators is improper.” Mr. Erskine responded by email, asking why
it would be improper to note depositions of essential witnesses. Ms. Gray did not respond
to Mr. Erskine’s email.
On or about April 22, 2014, after ignoring Ms. Gray’s request for a date for an
emergency hearing, Mr. Erskine issued subpoenas and deposition notices to the plaintiffs
and nonparty petition circulators. The nonparty petition circulators were to appear on ten
days’ notice, and no document production was requested; by contrast, the plaintiffs were
to appear on thirty days’ notice and to produce extensive documentation. According to the
hearing judge, the document request for the plaintiffs’ depositions was “extremely broad
and outside of the scope outlined in Normandy’s Counterclaim.”
On April 28, 2014, Ms. Gray filed a motion to strike or, in the alternative, to dismiss
the counterclaim, a request for an emergency hearing, and a memorandum in support. In
the motion, Ms. Gray argued that the discovery request was a “fishing expedition” meant
to “derail[] th[e] referendum effort” and “to intimidate the entire Howard County
community so that referendum efforts will never be mounted again.”
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On April 30, 2014, Mr. Dyer entered his appearance as Ms. Gray’s co-counsel.
Respondents filed a motion to quash the subpoenas and for a protective order, arguing that
(1) the declaratory judgment action was closed; (2) the counterclaim was time-barred; (3)
the declaratory judgment action could not proceed; (4) discovery was not permissible in
referendum-related cases; (5) Normandy was not an aggrieved party; (6) the counterclaim
was frivolous; and (7) issuing subpoenas to petition circulators violated the First
Amendment. The motion was filed on behalf of Carol, Frederick, Mr. Schneider, Ms.
Markovitz, “petition circulators and parties to all referendum cases, and Marie Kendall,
Howard County resident and circulator, but not a party to these cases, on behalf of
themselves and as representative of all petition circulators, and Citizens.”
On May 1, 2014, on its own initiative, the circuit court stayed all proceedings,
including discovery and motions, related to the declaratory judgment action. As of that
date, there were several matters pending in the declaratory judgment action, including the
motion to strike or dismiss the counterclaim, the motion for protective order, and the
discovery depositions noted by Normandy. Following the circuit court’s order, Normandy
cancelled all pending depositions.
G. The Third Round of Appellate Filings and May 14, 2014 Hearing
On May 6, 2014, Respondents filed a notice of interlocutory appeal, stating that
Carol, Frederick, Mr. Schneider, and Ms. Markovitz were appealing the circuit court’s
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April 30, 2014 decision;11 none of the petition circulators was named in the notice of
appeal. On the same day, Respondents filed in this Court a petition for a writ of certiorari
on behalf of Ms. Kendall and Ellen Long, nonparties, and on behalf of Carol, Frederick,
Mr. Schneider, and Ms. Markovitz, plaintiffs, for the circuit court’s April 30, 2014 order
denying “a motion to quash discovery.” In the petition, Respondents argued that Ms.
Kendall and Ms. Long, as nonparty petition circulators, had a final order and thus a right
to appeal the circuit court’s denial of the motion for protective order. Respondents also
argued that the interlocutory appeal was appropriate and that the circuit court’s order
denied Citizens’ motion to strike the counterclaim without a hearing. The petition
presented two questions for review: (1) “Did the [c]ircuit [c]ourt abuse its discretion in sua
sponte staying, not denying, discovery?”; and (2) “Did the [c]ircuit court abuse its
discretion in indefinitely staying the entirety of th[e d]eclaratory [j]udgment action?”
Respondents requested that this Court grant certiorari, issue an order stopping all
discovery, and order the circuit court to set a date by which to render final judgment on all
referendum matters.
On May 9, 2014, Normandy filed an emergency motion to dismiss the appeal for
lack of appellate jurisdiction, arguing that the circuit court had not denied the motion for
protective order and that Normandy had not filed a response to the motion as the time to
do so had not expired. Respondents did not file a response to the motion to dismiss.
11
Although Respondents filed the notice of appeal as to the circuit court’s April 30, 2014
decision, it appears that the notice of appeal was directed at the circuit court’s May 1, 2014
order, which stayed all proceedings related to the declaratory judgment action.
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In the meantime, on May 14, 2014, in Case No. 866, the circuit court conducted a
hearing on the merits of the judicial review matters. After hearing argument from the
parties on the judicial review matters, the circuit court addressed the declaratory judgment
action. The circuit court explained that its intent had been to schedule a motions hearing
in the declaratory judgment action after the merits hearing on the judicial review matters,
but stated that, because an appeal had been filed, if Ms. Gray did not lift the appeal, it
would not “do anything further.” The circuit court proposed setting a date for a motions
hearing in the declaratory judgment action within the next thirty days and “cut[ting]
everybody loose to do [] discovery and whatever else.” Ms. Gray responded that she had
“a big problem saying we are going to let everybody loose to do discovery” when
previously it had been agreed that everything would be finished by April 1, 2014. Ms.
Gray also argued that the counterclaim was untimely filed under the Election Law Article.
Ms. Gray proposed that the circuit court decide the judicial review matters as well as the
motion to strike the counterclaim that had been filed in the declaratory judgment action.
The circuit court responded that it could not decide the motion to strike because an appeal
was pending in the declaratory judgment action and thus the case was stayed, and that it
would decide only the judicial review matters and “let the chips fall where they may.” Ms.
Gray disagreed with the circuit court’s statement that it could not decide any matters in the
declaratory judgment action.
With respect to the appellate proceedings, on May 16, 2014, Respondents filed a
motion to lift the stay on all proceedings except discovery. On that same day, this Court
denied the petition for a writ of certiorari that had been filed on April 2, 2014.
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On May 22, 2014, before the circuit court issued any order in response to the motion
to lift stay, Respondents filed in the Court of Special Appeals an emergency petition for
expedited certification of the circuit court’s jurisdiction, in which they stated that the circuit
court’s stay “on the untimely filed duplicative” counterclaim, “for all practical purposes
restarts the entire declaratory judgment action, making it . . . impossible to ever get this
local ballot measure on the November ballot.” Respondents stated that it was “an egregious
waste of all parties[’] and the court’s time and part of a relentless, frivolous and
unprecedented effort to intimidate Howard County citizens and deprive them of their right
to vote on the referendum in November.” Respondents requested that the Court of Special
Appeals “certify” that the circuit court retained jurisdiction even though the Court of
Special Appeals was considering whether to act upon the interlocutory appeal.
On May 23, 2014, the Court of Special Appeals dismissed the interlocutory appeal,
granting Normandy’s emergency motion to dismiss the appeal for lack of appellate
jurisdiction. No claim was made to that Court that Respondents had acted in bad faith or
without substantial justification.
H. Resolution of the Judicial Review Cases in the Circuit Court
On May 28, 2014, the circuit court issued an opinion and order in the judicial review
cases, affirming the Board’s determinations, ruling that the Board correctly determined that
the requisite number of valid signatures had been submitted and that the Board had
correctly concluded that the summary was not fair and accurate. As such, both Normandy
and Citizens did not prevail on their individual petitions for judicial review.
I. Resumed Litigation of the Declaratory Judgment Action in the Circuit Court
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On May 29, 2014, one day after the resolution of the judicial review cases, the circuit
court received the order of the Court of Special Appeals dismissing the interlocutory appeal
in the declaratory judgment action. The following day, May 30, 2014, Normandy filed a
response to the motion to lift stay, requesting that the stay be lifted in all matters related to
the declaratory judgment action. On June 1, 2014, the circuit court issued an order vacating
the May 1, 2014 stay.
On May 30, 2014, Normandy filed a response to the motion to strike or dismiss the
counterclaim, a motion to compel discovery, and a response to the April 30, 2014 motion
to quash. Normandy argued that, because it was a party to the declaratory judgment action,
it should be permitted to conduct discovery. Normandy requested that the circuit court
compel the plaintiffs and nonparty petition circulators, Ms. Kendall and Ms. Long, to be
deposed. As of that time, neither Mr. Dyer nor Ms. Gray nor their clients or other nonparty
petition circulators had failed to comply with lawful discovery requests.
On June 9, 2014, Normandy requested a status conference as well as an emergency
hearing on all outstanding motions in the declaratory judgment action. On the same day,
Citizens filed a motion to dismiss based on res judicata, arguing that the circuit court’s May
28, 2014 opinion and order resolved all of the issues between the parties. Normandy filed
an opposition to the motion, arguing that the issues in the declaratory judgment action
remained, and, specifically, that the circuit court had not considered the allegation that the
petition circulators failed to comply with the Election Law Article.
J. The Fourth Round of Appellate Filings and June 17, 2014 Motions Hearing
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On June 2, 2014, Citizens filed a notice of appeal to the Court of Special Appeals
and a petition for direct appeal and a writ of certiorari in this Court, seeking review of the
circuit court’s May 28, 2014 opinion and order. On June 9, 2014, Normandy noted an
appeal to the Court of Special Appeals; Normandy later withdrew the appeal without
waiving its ability to participate. On June 19, 2014, this Court denied the petition for a
writ of certiorari. Meanwhile, in the Court of Special Appeals, a briefing schedule was
established, and oral argument was scheduled for August 3, 2014.
On June 17, 2014, the circuit court conducted a motions hearing in the declaratory
judgment action. In support of its motion to compel, Normandy argued that discovery was
sought from the petition circulators for the purpose of determining whether they had
complied with the requirements of the Election Law Article when collecting signatures and
whether there was any fraud. Citizens responded that discovery was inappropriate for
several reasons, including that the petition circulators’ First Amendment rights would be
violated if they were forced to appear for deposition. After hearing argument from the
parties, the circuit court stated that it did not find that having nonparty petition circulators
deposed violated their First Amendment rights, and that nothing in the Constitution
“require[d] that the depositions be quashed in any way.” The circuit court granted the
motion to compel discovery, denied the motion for a protective order, and stated that ten
days’ notice was appropriate.12 After further argument at the motions hearing, the circuit
12
The hearing judge noted that the depositions had never been scheduled and that,
accordingly, the motion to compel was improper.
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court denied the motion to dismiss for res judicata and stated that the case would proceed.
Following the hearing, the circuit court issued orders denying, without explanation,
Citizens’ motion to dismiss for res judicata, motion to dismiss or strike the counterclaim,
and motion for protective order. The circuit court also issued an order granting
Normandy’s motion to compel, providing that (1) the plaintiffs “shall provide responsive
documents that are within their possession, custody or control”; (2) the plaintiffs and
nonparty petition circulators, Ms. Kendall and Ms. Long, must “attend and participate in
duly noted depositions”; and (3) all “video depositions duces tecum are permitted with ten
(10) days[’] notice.”
K. Normandy Discovery Part II
On June 20, 2014, Mr. Erskine emailed all other counsel and advised of his intention
to take video depositions of the plaintiffs on July 8, 2014 and of twenty-five petition
circulators on July 9 and 10, 2014. Mr. Erskine asked that other counsel inform him
immediately, and no later than the close of business on June 23, 2014, if they or any of the
plaintiffs had scheduling conflicts. On June 24, 2014, having not received a response from
Mr. Dyer or Ms. Gray, Normandy issued notices of depositions to the plaintiffs,
specifically, Frederick, Carol, Ms. Markovitz, and Mr. Schneider, for depositions on July
8, 2014. Between June 23 and 26, 2014, Mr. Erskine and his staff prepared and caused to
be served subpoenas directed to the individual plaintiffs and approximately thirty
subpoenas directed to petition circulators.
On June 27, 2014, Respondents advised their clients that depositions had been
scheduled for July 8, 2014. Ms. Markovitz had a scheduling conflict and was scheduled to
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travel to Europe, leaving on July 5, 2014, and returning two weeks later. Because Ms.
Markovitz could not immediately reach Ms. Gray, she asked Carroll Holzer, an attorney
who had represented her in an unrelated matter, to call Mr. Erskine and inform him of the
scheduling conflict and to advise him that she was available for deposition on July 3, 2014.
Ms. Markovitz did not fault Ms. Gray for the brief delay in response, especially because
she knew that Ms. Gray’s other clients in the case were being served notices at the same
time. On June 27, 2014, Mr. Holzer called Mr. Erskine and explained that, although he
was not representing Ms. Markovitz in the case, he had been asked to contact Mr. Erskine
to see if it was possible to reschedule Ms. Markovitz’s deposition from July 8 to July 3.
After that telephone call, Mr. Erskine emailed all counsel, advising that he would
be willing to reschedule Ms. Markovitz’s deposition for July 3, 2014, but before agreeing
to do so, he wanted to confirm with all other counsel and parties to obtain their consent
because the new deposition date would be provided with fewer than ten days’ notice. In
his email, Mr. Erskine also stated that a condition of his consent to the rescheduling was
that Ms. Markovitz provide “copies of all documents responsive to the request for
documents contained within Exhibit A of the Notice of Deposition previously forwarded
to her no later than 48 hours prior to the rescheduled deposition.”
Mr. Oh and Mr. Karpinski agreed to reschedule Ms. Markovitz’s deposition. On
June 28, 2014, Ms. Markovitz delivered the discovery documents to Ms. Gray. On June
28, 2014, having received no response from Mr. Dyer or Ms. Gray, Mr. Erskine emailed
Respondents again asking whether they consented to rescheduling Ms. Markovitz’s
deposition. Mr. Erskine requested a response by noon on June 30, 2014.
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On June 30, 2014, at 2:42 p.m., Mr. Erskine sent another email, advising that he had
not heard from Mr. Dyer or Ms. Gray by noon, but was able to reach Ms. Gray by
telephone, at which time Ms. Gray stated that she did not consent to rescheduling Ms.
Markovitz’s deposition. In his email, Mr. Erskine stated that, during their telephone
conversation, Ms. Gray had stated that she was filing a notice of appeal as to the circuit
court’s denial of the motion to quash subpoenas and motion for protective order, as well as
the circuit court’s grant of the motion to compel discovery, and that she believed the
declaratory judgment action would be stayed and that the scheduled depositions would not
be able to occur. Mr. Erskine stated in the email that he informed Ms. Gray during the
telephone call that “it was improper to file an interlocutory appeal over a discovery issue,”
and that, even if she did file such an appeal, the circuit court would retain jurisdiction and
the depositions would proceed as scheduled. Mr. Erskine wrote in the email that, during
the telephone call, he had advised Ms. Gray that, if she filed the interlocutory appeal in bad
faith, he would move for sanctions. Mr. Erskine stated in the email that he would not
consent to rescheduling Ms. Markovitz’s deposition, that Ms. Markovitz would have to
appear on the date and time originally noted, and that, if Ms. Markovitz did not appear, he
would seek “to exclude any and all signatures collected by Ms. Markovitz from the
referendum tally.”
A few minutes after Mr. Erskine’s email, Mr. Dyer replied by email, stating that he
“strenuously object[ed] to [Mr. Erskine’s] continued harassment of the parties and the non-
parties,” and that he recommended Mr. Erskine “speak to an independent ethics advisor as
[he] seem[ed] to be headed down an illegal pathway that w[ould] not only result in
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significant repercussions for [his] career but w[ould] also cast an ugly light upon the entire
Maryland legal profession.” Mr. Dyer ended his email by stating, “behave yourself.”
Later that evening, Ms. Gray replied to Mr. Erskine’s email, stating, “Thank you for
acknowledging in our telephone conversation this afternoon that you fully agree that
nonparty circulators have a clear right to an interlocutory appeal on discovery matters.”
Ms. Gray stated that she expected Mr. Erskine to notify the nonparty petition circulators
that their depositions were to be stayed pending a decision on the merits of the appeal, and
that remaining silent “evidences a clear intent to continue the intimidation and harassment
of these individuals as a primary goal of [Mr. Erskine’s] clients.” As to the deposition of
the plaintiffs, Ms. Gray stated, “[T]his is not run of the mill litigation as you contend; it is
an election matter where the parties are exercising their most fundamental rights of political
speech,” and “[t]here has to be a right of interlocutory appeal when these First Amendment
rights are being abused.” Ms. Gray stated that there was evidence in the record that
Normandy, “through their attorneys, the [Board], and with assistance from the court, are
doing everything possible to ensure this referendum does not go on the November ballot.”
According to Gray, “[h]arassment and intimidation of circulators is just one very, very
significant and effective method of derailing referenda, now and in the future,” and that it
was “impermissible.”
According to the hearing judge, Respondents “informed their clients of the
depositions and correctly informed them of their rights with respect to attending.” The
hearing judge characterized Mr. Erskine’s behavior with respect to the depositions as
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“overly aggressive,” and remarked that the following testimony by Ms. Markowitz “best
summarized” Mr. Erskine’s behavior:
[Mr.] Erskine went ahead and picked dates and started serving people having
not attempted in good faith to schedule the depositions. Then only a few
days after he claims to have first asked for dates, he filed the notices, and
then started serving subpoenas right away, and continued to do so even after
being told by [Ms.] Gray, [that] she felt the appeal stayed discovery.
L. The Letter to the Editor
On June 30, 2014, the Baltimore Sun published a letter to the editor authored by
Respondents entitled “Intimidation tactics in play in referendum case.” The letter to the
editor stated, in full, as follows:
We, as the attorneys for many Howard county residents who circulated a
referendum petition to put on the ballot comprehensive zoning changes
proposed by Ken Ulman and the Council in July 2013 and whose clients are
not subject to developer issued subpoenas for filmed depositions, read your
July 24 article (“New controversy erupts in referendum case”) with deep
concern.
This is not a case where the developers have alleged anything suggesting
fraud and have reported such to the Board of Elections. Even if depositions
were appropriate, the developers and their attorneys are not even targeting
depositions to a particular circulator or two in an attempt [to] get evidence
substantiating their allegations. There is no articulated basis at all. Instead,
developer attorney [Mr.] Erskine, enabled by the court, issued subpoenas and
filed for writs of body attachment for 100-plus petition circulators, one of
whom moved to California before being served and would be subject to
interstate detainer and extradition back to Maryland. This is unprecedented.
Government officials and the courts cannot side with unlimited money
interests (in this case developer interest) to chill speech by 1) hindering the
circulation of petitions or the number of voices circulating a petition 2) or
engaging in action to keep something off the ballot.
The Supreme Court exhorts time and time again the right of referendum once
established, as in the Howard County charter, that all activities related to
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referendum such as circulating the petition, are “core political speech for
which First Amendment protection [is] at its zenith.”
Developers hate that citizens got the needed signatures to put their zoning
amendments to a vote. More than de[r]ailing the current referendum effort,
the developers want to de[r]ail all future referendum efforts, through
intimidation. Who will ever circulate a petition if they think there is any risk
of being hauled in for a deposition and be intimidated by insinuating wrong
doing on their part[?] Without immediate and substantial rectification of
these gross miscarriages of justice, the referendum will be dead in Howard
County for decades to come.
On August 13, 2014, as part of an article titled “Special appeals court strikes down
Howard zoning referendum,”13 the Baltimore Sun printed the following quote, attributed
to Ms. Gray: “Unreported opinions are the way the appellate courts do their political dirty
work . . . that tells you a lot.” The hearing judge noted that the accuracy of the attribution
was not proven by clear and convincing evidence because no testimony had been presented
from the Baltimore Sun reporter or any other witness supporting the quote’s accuracy.
M. The Fifth Round of Appellate Filings Part I
On June 30, 2014, Respondents filed a notice of interlocutory appeal and request
for expedited review on behalf of the plaintiffs and Ms. Long and Barbera Wasserman,
nonparty circulators, as representatives of a class of nonparty circulators. Respondents
stated that they represented no circulators other than Ms. Wasserman and Ms. Long. On
July 9, 2014, Normandy filed an emergency motion to dismiss the appeal for lack of
appellate jurisdiction and a request for sanctions pursuant to Maryland Rule 1-341, arguing
13
The hearing judge erroneously found that the quote attributed to Ms. Gray was printed
“in the same article” as the letter to the editor. Although the parties did not except to this
erroneous finding, for clarity, we have corrected the inaccuracy in our recitation of the
findings of fact.
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that the interlocutory appeal was not permitted by law. On July 14, 2014, Respondents
filed an opposition to the motion to dismiss.
N. Ongoing Discovery in the Circuit Court
On July 2, 2014, on behalf of the plaintiffs and two nonparty petition circulators,
Ms. Long and Ms. Wasserman, as “representative of all petition circulators,” Respondents
filed in the circuit court a motion to stay discovery. Although Respondents did not file a
motion to shorten time to respond to the motion to stay, they attempted to have an
emergency hearing conducted before the scheduled depositions.
Around that time, Respondents held a group meeting with their clients and other
nonparty circulators, including those who were not their clients. Respondents offered to
represent the nonparty circulators who were not already their clients if they faced sanctions
for not attending depositions, and explained the type of sanctions that might occur as a
result of not attending depositions. Respondents explained that they believed the
subpoenas violated the nonparty circulators’ First Amendment rights, but that the nonparty
circulators should either comply with the subpoena or seek counsel. After the large group
meeting, Respondents met with their clients and advised them that they would surrender
their First Amendment rights if they attended the depositions. Respondents also advised
their clients that, should the clients not attend the depositions, they would represent them
to defend their constitutional rights.
On July 7, 2014, one day before the scheduled depositions of Carol, Frederick, Mr.
Schneider, and Ms. Markovitz, Mr. Erskine emailed Respondents, stating that noting an
interlocutory appeal of the discovery orders did not stay the enforcement of those orders
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and that, unless the circuit court granted the motion to stay discovery by the close of
business that day, he intended to proceed with the scheduled depositions. Mr. Erskine
asked that, if Respondents advised their clients not to appear, that they advise him as much
so that he could cancel the court reporter and videographer, saving approximately $1,500
in standby costs. Mr. Erskine advised that it would cost approximately $8,000 to
reschedule the depositions of the plaintiffs and nonparty circulators. Mr. Erskine stated
that he “fully intend[ed] to seek sanctions against each and every Plaintiff who might fail
for any reason to appear” for the scheduled depositions, and that he would seek show cause
orders for contempt of any nonparty circulator who failed to appear for the scheduled
depositions. Mr. Erskine stated that, “in addition to seeking reimbursement of costs as an
appropriate sanction for violation of the [circuit c]ourt’s discovery order, [he] also
intend[ed] to ask the court to exclude from the referendum tally any signatures collected
by a Plaintiff or nonparty circulator who fail[ed] to attend their . . . deposition.”
On July 7, 2014, at approximately 2:00 p.m., the circuit court informed Respondents
that it would not rule on the motion to stay discovery prior to the scheduled depositions
because Normandy’s time to respond to the motion had not expired. Mr. Dyer immediately
relayed that information to all of the lawyers involved. Respondents did not file a second
motion for protective order or a motion to quash related to the second set of subpoenas
issued by Normandy, but instead relied on previous arguments.
On July 7, 2014, at 4:21 p.m., Mr. Erskine emailed Respondents again stating that,
unless the circuit court stayed its discovery orders, the scheduled depositions of the
plaintiffs and nonparty circulators would occur.
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On July 8, 2014, at 11:50 a.m., Mr. Dyer emailed Mr. Erskine, Mr. Oh, and Mr.
Karpinski, stating that he was attaching a letter of representation for twenty-four nonparty
petition circulators and that more clients were “expected.” Mr. Dyer advised that he and
Ms. Gray had advised their clients not to appear at the scheduled depositions because doing
so “would constitute a waiver of their constitutional right to speech and because th[e]
constitutional issue [was] before the Court of Special Appeals.” Mr. Dyer also stated that
Mr. Erskine’s “efforts to depose the circulators of any referenda without proper cause
constitute[d] a gross violation of the freedom of speech rights (including the most important
speech right – political speech) of the circulators.”
On July 8, 2014, at 12:33 p.m., Mr. Erskine emailed Respondents, stating that he
had not agreed to postpone or cancel any of the depositions, suggesting that Respondents
file a motion for protective order on behalf of the newly retained clients, and advising that,
in the absence of a protective order, the depositions would proceed as scheduled. Mr.
Erskine again reiterated his intent to seek appropriate sanctions for any witness’ failure to
appear at a scheduled deposition, including reimbursement of costs and the removal of any
signatures collected by that witness. Mr. Erskine also stated that, because Respondents
had advised that their clients would not attend the scheduled depositions, he was cancelling
the court reporter and videographer unless he heard from them “now.” Based on
Respondents’ advice, the plaintiffs and nonparty petition circulators did not attend the
scheduled depositions.
On July 7, 2014, the day before the first scheduled depositions, Normandy filed in
the circuit court a motion for sanctions pursuant to Maryland Rule 1-341 and a request for
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a hearing, seeking sanctions for the filing of five allegedly unjustified interlocutory appeals
and Respondents’ alleged refusal to communicate with Normandy as to the scheduling of
the depositions. Respondents did not file a response or opposition to the motion.
On July 9, 2014, Normandy filed in the circuit court a motion for sanctions pursuant
to Maryland Rule 2-433 and a request for a hearing, seeking sanctions for the plaintiffs’
failure to appear for their scheduled depositions. Respondents did not file a response or
opposition to the motion. Later, on August 26, 2014, Ms. Markovitz, proceeding pro se,
filed a late opposition to the motion.
Also on August 26, 2014, Respondents, on behalf of twenty-eight nonparty petition
circulators, filed a limited appearance to oppose Normandy’s motion for sanctions, arguing
that depositions of the petition circulators violated the First Amendment.
O. Motions for Writs of Body Attachment
On July 10, 2014, at 9:00 a.m., Mr. Erskine emailed Respondents to advise them
that he would be preparing motions for writs of body attachment against each of the
nonparty petition circulators who failed to appear at their scheduled depositions on July 9,
2014. Mr. Erskine stated that it was not his “intent[ion] to harass or intimidate any party
or non-party circulator,” but he had “no other viable option” to complete discovery in
advance of the August 18, 2014 deadline. Mr. Erskine proposed “the following
opportunity” to the nonparty witnesses so that they could avoid being “subjected to the
embarrassment and humiliation of possible arrest”: he would not file a motion for writ of
body attachment for any nonparty witness who notified him by close of business that day
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of their willingness to pick up a new subpoena and attend a rescheduled deposition within
the next ten days. Mr. Erskine then stated,
[I]n the unfortunate event that any of your clients shall suffer the humiliation
and embarrassment of a Body Attachment it will be due only to the quality
of the advice and guidance you choose to provide them going forward. In
other words, it is not too late to correct improvident advice previously
provided. I do hope for your clients’ sake that you will take full advantage
of this opportunity.
On July 11, 2014, Mr. Erskine filed twenty-six motions for writs of body attachment
directed at nonparty petition circulators for their failure to appear at scheduled depositions.
In a letter dated July 15, 2014, Tanya Spann Roche, a nonparty petition circulator,
wrote to the Clerk of the circuit court, and copied Mr. Erskine, stating that she had been
out-of-state on a business trip between July 9 and 14, 2014, and thus was unable to attend
the deposition scheduled for July 10, 2014. Ms. Roche stated that she was back from her
business trip and available to attend a rescheduled deposition. On July 16, 2014, Mr.
Erskine received a copy of Ms. Roche’s letter, which he forwarded to Respondents by
email, in which he stated that he would withdraw the motion for a writ of body attachment
filed against Ms. Roche if she contacted him to reschedule her deposition. Mr. Erskine
then requested that Respondents inform all of their clients that he would be willing to
withdraw the motion for a writ of body attachment in exchange for the client attending a
rescheduled deposition.
P. The Fifth Round of Appellate Filings Part II and an Appellate Opinion
On July 14, 2014, Respondents filed in this Court an “Emergency Petition for Direct
Appeal Writ of Certiorari, Ancillary Injunctive Relief and Expedited Review,” in which
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they stated that the circuit court had “adjudicated all claims in each of the underlying cases
appealed in their entirety, however, on June 17, 2014, the [circuit] court denied [their]
motion for res judicata.” The emergency petition posed the following two questions:
(1) In an Election Law Article matter, where the circuit court judge has
consolidated related election law cases and, after hearing argument, inter
alia, on a requested declaratory judgment, enters the requested declaratory
judgment into an order under a related case number, may the Court of
Appeals take jurisdiction, under [the] Election Law Article, and review the
[circuit] court’s declaratory judgment even though the declaratory judgment
case (#230) remains open in the lower court docket?
(2) Whether the summary of the matters to be referred found on the back
page of the referendum petition is ‘fair and accurate’ as required by Election
Law Article § 6-201(c)(2)(i)?
On July 16, 2014, Normandy filed an answer to the emergency petition.
On August 6, 2014, the Court of Special Appeals issued an order dismissing the
interlocutory discovery appeal, stating that the appeal was not allowed by law.
On August 13, 2014, in the appeal of the merits of the judicial review matters, the
Court of Special Appeals issued an unreported opinion affirming the judgment of the circuit
court, and concluding that “the misrepresentations in the petition were . . . so manifest and
substantial that it is inconceivable that appellants did not know that their summary was not
a fair and accurate representation of the contested provisions of the ordinance.” The
opinion was later reported on August 28, 2014.
On August 15, 2014, Respondents filed a petition for a writ of certiorari seeking
review of the Court of Special Appeals’ opinion. On August 19, 2014, this Court issued
an order denying certiorari.
Q. The August 27, 2014 Motions Hearing
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On August 27, 2014, the circuit court conducted a motions hearing attended by Mr.
Dyer, Ms. Gray, Mr. Erskine, Mr. Oh, Ms. Markovitz, and Skip Cornbrooks, successor
counsel for the Board. Normandy argued that the case was moot because this Court had
denied certiorari, and stated that there was no longer any need for discovery.
Unsurprisingly, Respondents urged the circuit court to grant summary judgment in their
favor in the declaratory judgment action and to put the referendum on the ballot. The
circuit court stated because the Court of Special Appeals had affirmed its judgment and
because this Court denied certiorari, “[t]hat ends the matter as far as the ballot goes” and
the case was moot. According to the circuit court, the ruling in the case had been made
and the merits had been decided.14
The circuit court then heard argument on the two pending motions for sanctions. At
that time, Normandy withdrew the request for writs of body attachment and withdrew its
request for sanctions as to the parties; instead, Normandy requested monetary sanctions
against Respondents. The circuit court ultimately granted the motions for sanctions, ruling
that Respondents had to pay $6000 for the work Mr. Erskine performed in responding to
Respondents’ appeals. In ruling on the motions for sanctions, the circuit court stated, in
pertinent part,
Now, when those notices of deposition were sent out, and I think that Ms.
Gray did file a motion for protective order, that was my opportunity frankly
14
The hearing judge noted that, as Respondents alleged, if the merits of the case were
concluded as the circuit court believed, then the additional discovery sought by Mr. Erskine
was unnecessary. According to the hearing judge, Bar Counsel “relie[d] upon [the circuit
court]’s comment to support Mr. Erskine’s complaint against Respondent[s], but ignore[d]
the point of [the circuit court]’s comment entirely.”
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to step in and say, hey, wait a minute. And I’m going to tell you what - - I’ll
tell you what I would have done with that. I would have said yeah, some
depositions will forward, but we’re not going to do all these depositions.
That’s overwhelming. I’ll give you six. Pick your number.
That’s – and I don’t normally say what I would have done because it really
is moot now, but that’s what I would have done. But I never had a chance to
consider it because in the meantime Ms. Gray filed this appeal. And once
there’s an appeal, as I’ve said, the court is deprived of any jurisdiction to go
forward.
So all of this stuff has continued to dwell about and it brings us then to the
point that the case has been decided by the Court of Special Appeals. I’ve
allowed a lot of argument, a lot of discussion today because it is important
for people to be heard and I realize the frustration that nothing is happening
that the citizens want at this point.
I think you’re entitled to this explanation. You don’t have to agree with me.
You don’t have to like it, but you’re entitled to some explanation and I feel
obligated to give it because I firmly agree that our system of justice is the
best there is. I believe we’re all blessed to be a part of it and I felt that way
long before I went on the bench. And as I’ve said, you don’t have to agree
with me, but at least I’m obligated, I believe, to give you some information
that I think is important.
Now, the issue before me today is this request, the request for sanctions. And
it’s true that all of these depositions were noted. And whatever you may
think of the motivations of the parties, I accept the facts are that no one
appeared and that they were advised not to.
I’m less concerned about that quite frankly than I am about the fact that a
motion for protective order which is provided by the rules could have been –
was filed and could have been heard and could have been dealt with. You
know, we are a nation of laws. There are rules.
***
But among the rules here is that once an appeal is filed, the court can’t go
forward. So once that appeal is filed, I didn’t have any choice but just to sit
back and let it happen until the Court of Special Appeals dismissed the appeal
because it had no merit. It was without any substantial justification and it
was against the rules.
- 42 -
***
I’m more concerned with the fact that the other parties in this case had to deal
with an appeal improperly filed, because had I been able to deal with this
here in court, we could have resolved this matter and moved on. You would
have had some depositions. The citizens would have been protected in a
much better way, but I never had that opportunity.
After the circuit court stated its oral ruling, Ms. Gray asked to correct the record:
We filed a motion to quash subpoenas and for protective order giving you
the opportunity to do this. It was filed on April 30th, 2014. The court heard
this motion on June 17th. . . . You heard that motion on that date and you
denied the motion for the protective order.
In response, the circuit court stated that it was referencing “the protective order that could
have been filed when those particular . . . notices of deposition went out.” At the conclusion
of the motions hearing, the circuit court issued an order consistent with its oral ruling, and
on August 28, 2014, a judgment in the amount of $6000 was entered against Respondents.
R. The Final Round of Appellate Filings and Appellate Proceedings
At the August 27, 2014 hearing, the circuit court discussed issuing a final order
dismissing the declaratory judgment action; as of September 10, 2014, no such order had
been issued. On September 10, 2014, Normandy filed a motion to dismiss for res judicata
and mootness. Respondents did not file an opposition to the motion to dismiss. Eventually,
on October 16, 2014, the circuit court issued an order granting the motion and dismissing
the case with prejudice.
In the meantime, on September 22, 2014, on behalf of Carol, Frederick, Mr.
Schneider, Ms. Wasserman, and Ms. Long, Respondents filed in this Court a petition for a
writ of certiorari, seeking review of the circuit court’s June 17, 2014 orders denying the
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motion for protective order and granting the motion to compel. Respondents requested that
this Court vacate the discovery orders.
On September 26, 2014, on behalf of Carol, Frederick, and Mr. Schneider,
Respondents noted an appeal to the Court of Special Appeals as to the sanctions award
issued on August 28, 2014, as well as to “decisions rendered August 27, 2014.”
Respondents were not identified as appellants.
On November 7, 2014, on behalf of Carol, Frederick, and Mr. Schneider,
Respondents filed another notice of appeal seeking review of the circuit court’s October
16, 2014 order dismissing the declaratory judgment action.
“After some confusion,” two separate cases were opened in the Court of Special
Appeals, Case No. 1627 and Case No. 2091, September Term, 2014. On November 19,
2014, in Case No. 1627, Normandy filed a preliminary motion to dismiss the appeal for
failure to preserve the issues, waiver, estoppel, and mootness; Normandy also requested
sanctions pursuant to Maryland Rule 1-341 and requested a hearing. On December 1, 2014,
Respondents filed a response to the motion to dismiss the appeal, contending that they were
appealing both the sanctions and discovery issues, as well as the circuit court’s alleged
refusal to decide Citizens’ motion for summary judgment “on the fairness and accuracy of
the referendum summary as a mixed question of law and fact based on the evidence
presented” and to decide other issues related to the complaint for declaratory judgment.
The Court of Special Appeals denied the motion to dismiss the appeal, with leave for
Normandy to request the same relief in its brief.
- 44 -
On March 23, 2015, the Court of Special Appeals established a briefing schedule
for both appeals, requiring appellants’ briefs to be filed by May 5, 2015, and requiring
appellees’ briefs to be filed by June 4, 2015. On April 28, 2015, Respondents filed a
“Motion to Have Trial Court ‘Record’ Returned to Howard County Circuit Court to Have
‘Record’ Corrected to Make it Appealable and to Stay the Due Date for Appellants’ Brief
until 30 Days after the Corrected Record is Filed with Court.” Normandy and the Board
filed oppositions to the motion. On May 5, 2015, the Court of Special Appeals denied the
motion.
On June 5, 2015, Respondents filed the appellants’ brief in Case No. 1627, raising
three issues: (1) whether the circuit court “impermissibly granted” the motion for sanctions
against them, as counsel; (2) whether the circuit “court erred in finding that unlimited
discovery as to petition circulators did not implicate their First Amendment rights”; and
(3) whether the petition circulators had a right of interlocutory appeal. Respondents did
not file an appellants’ brief in the other pending appeal, Case No. 2091. As such, on July
2 and 6, 2015, Normandy filed in Case No. 2091 a motion to dismiss the appeal for failure
to file an appellants’ brief. On July 6, 2015, Normandy filed in Case No. 1627 a motion to
dismiss and appellees’ brief; in the motion to dismiss, Normandy contended that the appeal
should be dismissed due to res judicata and a lack of standing. On July 16, 2015,
Respondents filed in Case No. 2091 a response to the motion to dismiss, as well as a
“Motion for Court Order Confirming that [Citizens’] September 26, 2014 and November
7, 2014 Appeals (Both as to the Same Matters in the Same Case) are Proceeding Forward
- 45 -
Under Case Number 1627, September 2014 Term, and that Case No. 02091 is an
Erroneously Opened, Invalid Case Number.”
On July 27, 2015, Respondents filed two appellants’ reply briefs in Case No. 1627,
in which they responded to the motion to dismiss that had been filed in Case No. 2091. On
August 12, 2015, the Court of Special Appeals issued an order dismissing Case No. 2091
for Respondents’ failure to file an appellants’ brief.
On September 3, 2015, the Court of Special Appeals heard oral argument in Case
No. 1627. After oral argument, Respondents filed a “Motion for Judicial Notice of
Motions, Affidavits, Correspondence and Rulings in Court of Special Appeals No. 2091
September Term 2014,” requesting that the Court of Special Appeals consider filings from
Case No. 2091.
On September 24, 2015, the Court of Special Appeals issued an unreported opinion
in Case No. 1627, dismissing the appeal and concluding that challenges to the circuit
court’s discovery orders were moot and that Citizens lacked standing to challenge the
sanctions imposed against Respondents.
On October 9, 2015, Respondents filed in this Court a petition for a writ of certiorari,
challenging the dismissal of Case No. 2091. Normandy filed a motion to dismiss,
contending that the petition for a writ of certiorari was untimely filed. Respondents filed
a response to the motion to dismiss, arguing that this Court should issue a writ of certiorari
on its own motion for “housekeeping purposes.”
On November 10, 2015, Respondents filed in this Court a petition for a writ of
certiorari, seeking review of the Court of Special Appeals’ unreported opinion in Case No.
- 46 -
1627, which had been issued on September 24, 2015. In the petition for a writ of certiorari,
Respondents presented the following issues: (1) whether Normandy had standing to bring
the counterclaim and to otherwise participate in the case and “whether courts had
jurisdiction to act on these filings”; (2) whether the circuit court lacked jurisdiction to
decide a motion to dismiss after Respondents had noted their appeal of the circuit court’s
August 27, 2014 “verbal order dismissing the case”; and (3) whether the First and
Fourteenth Amendments had been violated. On November 23, 2015, Normandy filed in
this Court an answer to the petition for a writ of certiorari, and on December 4, 2015,
Respondents filed a response. On January 29, 2016, this Court issued an order dismissing
the petition for a writ of certiorari in Case No. 2091, and another order denying the petition
for a writ of certiorari in Case No. 1627.
S. Bar Counsel’s Investigation
In a letter dated August 22, 2014, Mr. Erskine filed with Bar Counsel a complaint
against Respondents, stating that it was his belief that he was obligated pursuant to MLRPC
8.315 to report Respondents’ alleged misconduct. In the letter, Mr. Erskine alleged that
Respondents failed to comply, and advised their clients not to comply, with the circuit
court’s June 17, 2014 order compelling discovery and the subpoenas issued, and that
Respondents filed frivolous interlocutory appeals. In a letter dated September 2, 2014, Mr.
15
MLRPC 8.3(a) provided, “A lawyer who knows that another lawyer has committed a
violation of the [MLRPC] that raises a substantial question as to that lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.”
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Erskine supplemented his complaint to include additional allegations concerning
statements that Ms. Gray allegedly made about the judiciary.
In a letter dated September 15, 2014, Bar Counsel forwarded Mr. Erskine’s two
complaint letters to Respondents and requested a response to the allegations within fifteen
days. In separate letters dated September 30, 2014, Respondents wrote to Bar Counsel. In
his letter, Mr. Dyer voiced concern that the letter that he received from Bar Counsel was
marked “PRIVATE AND CONFIDENTIAL,” and advised that he demanded his “full
rights under the First Amendment as applied to Commission proceedings by the Fourteenth
Amendment,” and that he refused to participate in private and confidential proceedings
“until the legality of Maryland’s confidential attorney grievance proceedings ha[d] been
fully tested.” Mr. Dyer contended that Maryland Rule 16-723 needed to be updated to be
legally correct. Mr. Dyer ended his letter by stating that he was committed “to cooperating
fully with the Commission with regard to any complaints, but only in a public proceeding
that passes First Amendment strict scrutiny.”
In her letter, Ms. Gray wrote, in pertinent part,
As an attorney who has spent almost the entirety of her 20 plus year practice
working almost exclusively for local individuals and community groups
against development proposals the communities consider adverse to them, I
am chagrined and actually a little surprised at the depth to which these
interests and their attorney, Mr. Erskine, have stooped this time to ensure that
future referenda on land use matters will not happen again in Howard County
in the foreseeable future, and if by some remarkable chance someone dares
to attempt to take a land use decision to referendum, they will not be able to
find an attorney to represent them. Simply put, this complaint is nothing
more than a continuation of more than six months of attempted intimidation
by Mr. Erskine of a broad array of members of the Howard [County]
Community who dared to exercise their right to referendum as to what may
be billions of dollars in development projects. This attempted intimidat[ion],
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based on bald faced misrepresentations and deceit, is now directed at the
attorneys, Mr. Dyer and myself, who tried to protect the clearly established
First Amendment rights of our clients and secure for these individuals their
Charter established right to vote on zoning matters. . . .
. . . [T]he referendum effort was squeaky clean. Unfortunately, the Board []
and subsequent judicial processes from which this complaint arises have not
been so clean. The Board [] refused to certify the ballot question without
supplying a judicially reviewable reason why. The judicial process was beset
with procedural irregularities severely prejudicial to referendum advocates
(including but not limited to: the holding of an ex parte hearing without
notice to referendum advocates’ counsel; the flagging of counsel’s name in
the court’s computer system not to receive notices; the refusal of the court to
give counsel dispositive notices; and the refusal of the court to hold requested
hearings or hold them in a timely manner; the refusal of the court to record a
hearing on dispositive matters; the alter[]ation of documents in the court’s
files to make it appear that petition circulators had engaged in fraud; and the
list goes on). . . . In all the proceedings, misrepresentation by opposing
counsel in papers was the norm.
***
I would be happy to work with the [] Commission in public proceedings to
“set the record straight” as to Mr. Erskine’s complaint. It actually would be
nice to have the opportunity to put forth publically the evidence on such
things Mr. Erskine spoke about[.]
At the end of her letter, Ms. Gray stated that she adopted Mr. Dyer’s letter and requested
“the same opportunity to respond to Mr. Erskine’s allegations in public proceedings.”
In letters dated October 3, 2014, Bar Counsel wrote to Respondents, stating that
“Maryland Rule 16-723(f)(1) [] provides that you may sign a written waiver of
confidentiality which should remedy any concerns you have at this stage of our
investigation.” Bar Counsel also advised Respondents that they could waive their
participation in the peer review process, if it proceeded to that point, and that the results
thereafter would be the filing of a petition for disciplinary or remedial action. Bar Counsel
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requested that Respondents respond to the complaint by October 17, 2014, and reminded
them of their responsibility under MLRPC 8.1 to “not knowingly fail to respond to a lawful
demand for information by a disciplinary authority.”
In a letter dated October 17, 2014, Ms. Gray wrote to Bar Counsel, stating that,
although she had reviewed Maryland Rule 16-723(f)(1), she “could find nothing that
suggests that by executing a written waiver under th[e] Rule, [she] c[ould] make public Mr.
Erskine’s complaint against [her], make public [her] response, or make public other
materials related to th[e] matter.” Ms. Gray further stated,
[T]his complaint arises out of a very public process – a referendum effort –
where attempted intimidating of referendum supporters and their attorneys
was the norm. This is unacceptable. I have not violated the [MLRPC] unless
strenuously attempting to protect my clients[] from intimidation, and protect
their First Amendment right of petitioning and right to vote, is such a
violation. Unfortunately, a “closed,” non-public, attorney grievance process
can be improperly used to further intimidate, to shield the public from the
facts regarding what happened with the referendum effort, and to preclude
future . . . litigation. . . . Within the protections of the First Amendment . . .,
I again restate my willingness to work with Bar Counsel to resolve the
complaint against me in fully open and transparent process.
(Paragraph break omitted.)
In a letter dated October 17, 2014, Mr. Dyer wrote to Bar Counsel, reiterating his
“refusal to participate in confidential attorney grievance proceedings pursuant to [his]
rights under the [] First and Fourteenth Amendments.” As to Bar Counsel’s advisement
with respect to a waiver of confidentiality, Mr. Dyer stated that he had “‘concerns’ relate[d]
to the Commission’s actions,” and he inquired as to how any action of his under Maryland
Rule 16-723(f)(1) could “bring the Commission into compliance with the law.”
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In letters dated October 29, 2014, Bar Counsel responded to Respondents,
requesting that they sign a written waiver if they wished to forego confidentiality. Bar
Counsel stated that Respondents’ analysis of the First Amendment was not relevant to the
request for a response to the complaint, and advised that Bar Counsel had the authority to
investigate allegations of misconduct. Bar Counsel again reminded Respondents that an
attorney’s failure to respond to requests for information may result in disciplinary action.
In a letter dated November 24, 2014, Mr. Dyer responded to Bar Counsel, stating
that he was “keeping with [his] steadfast refusal to participate in secret attorney grievance
proceedings pursuant to [his] rights under the [] First and Fourteenth Amendments.” Mr.
Dyer advised that, because this Court has jurisdiction over attorney discipline cases, he
would be asking this Court “to prohibit [Bar Counsel’s] effort to violate [his] due process
and free speech rights.” Mr. Dyer stated that he would not file a “petition for writ of
prohibition” until December 19, 2014, in the hopes that “the operation of the Commission
can be brought within the bounds of the law without the intercession of the Court of
Appeals.”
In a letter dated December 4, 2014, Bar Counsel responded to Mr. Dyer, stating that
his letter would be treated as a written waiver of confidentiality. Bar Counsel asked Mr.
Dyer to “explicitly state [his] request(s)” with respect to what he wanted from Bar Counsel
and/or the Commission. Bar Counsel again requested that Mr. Dyer respond to Mr.
Erskine’s complaint and advised Mr. Dyer that it intended to file a statement of charges no
later than January 9, 2015.
In a letter dated December 20, 2014, Mr. Dyer responded to Bar Counsel:
- 51 -
I object to your decision to “treat [my Nov. 24, 2014] letter as a written
waiver of confidentiality.” As I explained . . . the “waiver of confidentiality”
provided in the current rules is illusory because of the secrecy power retained
by the [] Commission[.]
***
[] I repeat my willingness to work with the Commission on revising the
existing Maryland Rules to align them with the U.S. Constitution. . . . I
believe that, if the Commission were willing to join with me in requesting a
Rules Committee review of those Maryland Rules governing the operation
of the Commission in light of the specific Constitutional issues I have raised,
there would be prompt action by the Rules Committee one way or the other.
. . . I [] offer to attend the January 9th [Rules Committee] meeting with you
and, if asked by the Committee, answer questions about my concerns with
the existing Rules.
In return, I ask that the Commission delay action on Mr. Erskine’s complaint
pending action by the Rules Committee.
[] I do not waive my option to petition the Court if I believe there is no further
option but, in the meantime, I reaffirm my willingness to work with the
Commission in a good faith effort to improve the Maryland Rules.
(First alteration in original) (paragraph break omitted).
In a letter dated December 23, 2014, Bar Counsel responded to Mr. Dyer, stating
that the Commission would not join Mr. Dyer “in any presentation or request before the
Rules Committee” and that the “filing of a Statement of Charges w[ould] not be delayed.”
On January 7, 2015, in this Court, Mr. Dyer filed a “Petition for Writ of Prohibition
and/or Mandamus or Other Appropriate Relief,” requesting that this Court issue a writ of
prohibition or mandamus “precluding the Commission from secret proceedings in any
manner involving [Mr. Dyer] or any other person until the Maryland Rules governing the
operations of the Commission have been amended to comply with the United States
- 52 -
Constitution.” On January 23, 2015, Bar Counsel filed a response. On February 19, 2015,
this Court issued an order denying the petition for writ of prohibition.
T. Other Findings by the Hearing Judge
The hearing judge made these additional findings and conclusions concerning
Respondents’ representation:
[Bar Counsel’s] view, taken largely from opposing counsel’s view of
the conduct of the Respondents throughout the underlying litigation, is
summarized by one paragraph of [Bar Counsel’s] proposed findings of fact
and conclusions:
The Respondents’ conduct, taken as a whole, most certainly
brings the legal profession into disrepute in violation of
[MLRPC] 8.4(d). It would be hard to imagine lawyers’
conduct which burdened the judicial process to a greater degree
than the conduct of the Respondents. Virtually every step they
took caused the court, their clients and the other parties to
expend needless time, resources and energy. The
Respondents’ tactics violated their obligations, as attorneys,
not only to the court and the judicial process but also their
clients. All involved in the referendum litigation suffered as a
result.
In distinct contrast, the opinion of the Respondents’ clients, many of
whom are alleged to have been wronged by the Respondents’ representation,
is summarized best by a quote from [Ms.] Markovitz during [the hearing]:
“It’s rare to have attorneys who will represent citizens in land
use cases in Howard County, and [the Respondents] did so not
only in great controversial issues, but also in a pro bono way.
And often in controversial issues like this, people might have
different opinions about strategy in a case, but always ended
up with a consensus and I’m not displeased with [their]
representation. And I think that the opposing counsel having
made the [c]omplaint in this matter would sort of like nothing
better than two less attorneys who are going to oppose land use
clients in the future.”
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This Court has reviewed and considered the evidence in this case as
well as the arguments of [Bar Counsel] and the Respondents. The Court has
also had the opportunity to judge the credibility of the witnesses presented in
this case. For reasons to be stated herein, this Court concludes that [Bar
Counsel] has failed to prove, by clear and convincing evidence, that either
Respondent violated the [MLRPC] as identified and proposed by [Bar
Counsel]. This Court does not conclude that the Respondents were correct
in every step they took or every argument made. That is seldom true in any
litigation, much less litigation as contentious and complex as this turned out
to be. However, it is clear to this Court that neither Respondent acted in bad
faith or without substantial justification in their actions in this case.
In response to [Bar Counsel]’s overall analysis of the Respondents’
conduct, this Court concludes that taken as a whole, their conduct did not
bring the legal profession into disrepute in violation of [MLRPC] 8.4(d). To
the contrary, the Respondents provided adequate, but not necessarily perfect,
pro bono legal representation that probably would not have otherwise been
available to their clients. They appropriately and adequately sought to assist
their clients with the referendum litigation. They also sought to ensure that
the First Amendment rights of their clients and nonparty circulators were
protected from what they perceived to be unnecessary, improper and
overbroad discovery requests initiated by opposing counsel, [Mr.] Erskine[.]
They steadfastly opposed any effort to seek discovery that was clearly not
limited to the specific issues in front of the [c]ircuit [c]ourt . . . and perhaps
not even available in light of the late Declaratory Judgment filing by Mr.
Erskine. Not only does this Court conclude that in doing so, they did not
engage in frivolous actions, this Court concludes that their opposition was in
good faith, legally and factually justified and appropriate.
Furthermore, the evidence is clear and convincing that the
Respondents are not vexatious litigants and lawyers. To the contrary, they
have spent most of their careers serving the public and providing pro bono
legal services in matters such as the subject litigation over the zoning
referendum in Howard County. Ultimately, while the Respondents were not
successful in their administrative appeal, they were successful in protecting
the First Amendment rights of their clients and the other non-party
circulators. And, while each and every action that the Respondents took
might not have been, in hindsight, the most correct choice, the issue in this
case is not whether the Respondents were correct as a matter of law in their
contentions, but rather whether they violated the [MLRPC] as alleged.
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STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of
law. See Md. Rule 19-741(b)(2)(B) (“The Court [of Appeals] shall give due regard to the
opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney
Grievance Comm’n v. Chanthunya, 446 Md. 576, 588 (2016) (“This Court reviews for
clear error a hearing judge’s findings of fact.” (brackets, citation, and internal quotation
marks omitted)); Md. Rule 19-741(b)(1) (“The Court of Appeals shall review de novo the
[hearing] judge’s conclusions of law.”). This Court determines whether clear and
convincing evidence establishes that a lawyer violated an MLRPC. See Md. Rule 19-
727(c) (“Bar Counsel has the burden of proving the averments of the petition [for
disciplinary or remedial action] by clear and convincing evidence.”).
DISCUSSION
A. Exceptions to the Hearing Judge’s Findings of Fact
Respondents do not except to any of the hearing judge’s findings of fact. The
Commission excepts to many of the hearing judge’s findings of fact or failure to find
certain facts. We sustain one of the Commission’s exceptions—that the hearing judge
erroneously failed to find that Citizens received timely notice of the Board’s motion to
consolidate—and overrule the remainder of the Commission’s exceptions to the hearing
judge’s findings of fact.
First, the Commission excepts to the hearing judge’s finding that “Ms. Gray and her
clients were entitled to notice [of the January 8, 2014 hearing] and to appear [at the hearing]
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because their case, No. 2[13,] was the subject, in part, of the Board’s Motion [to Dismiss].
According to the Commission, the January 8, 2014 hearing was scheduled on the Board’s
motion to dismiss, which had been filed only in Case No. 866, and as of January 8, 2014,
the cases had not yet been consolidated, Citizens had not filed a notice of participation in
Case No. 866, and Ms. Gray had not entered her appearance in Case No. 866.
The parties do not dispute that, on October 30, 2013, Normandy filed in the circuit
court a petition for judicial review challenging the Board’s determination that Citizens had
gathered 2902 valid signatures for the referendum petition and that neither Carol nor Ms.
Markovitz received notice that to oppose the petition for judicial review a party must
respond within thirty days after receipt of notice of the petition. As of October 30, 2013,
the date that Normandy filed the petition for judicial review in Case No. 866, Maryland
Rule 7-202(d)(3) provided,
Unless otherwise ordered by the court, the agency, upon receiving the copy
of the petition from the clerk, shall give written notice promptly by ordinary
mail to all parties to the agency proceeding that:
(A) a petition for judicial review has been filed, the date of the filing, the
name of the court, and the civil action number; and
(B) a party wishing to oppose the petition must file a response within 30 days
after the date the agency’s notice was mailed unless the court shortens or
extends the time.[16]
16
On March 2, 2015, this Court adopted an amendment to Maryland Rule 7-202(d)(3),
which became effective on July 1, 2015. The amendment specified the type of mailing
(first-class mail, not ordinary mail) and provided for electronic notification in workers’
compensation cases under certain circumstances. See Court of Appeals of Maryland, Rules
Order on the Supplement to the 186th Report of the Standing Committee on Rules of
Practice and Procedure, 124 (Mar. 2, 2015),
http://www.mdcourts.gov/rules/rodocs/ro186supp.pdf [https://perma.cc/YQG7-3FYF].
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The Board received a copy of the petition for judicial review, and on November 8, 2013,
sent a letter to Carol and Ms. Markovitz that stated, in its entirety:
Please be advised that on November 4, 2013, the [] Board [] received
notice from the [c]ircuit [c]ourt [] that a Petition for Judicial Review had been
filed opposing the referendum petition pertaining to CB 32-2013. Enclosed
is a copy of the Petition.
This office has an obligation to inform interested parties of the filing
of a Petition for Judicial Review. Any questions you may have about the
legal process should be directed to the [c]ircuit [c]ourt [] and any legal
counsel.
Significantly, the Board’s letter failed to notify Carol and Ms. Markovitz, in accordance
with Maryland Rule 7-202(d)(3)(B), that “a party wishing to oppose the petition must file
a response within 30 days after the date the agency’s notice was mailed unless the court
shortens or extends the time.” In other words, neither Carol nor Ms. Markovitz were
provided the required notice that they had thirty days from November 8, 2013, to oppose
the petition for judicial review in the circuit court.
Next, as the hearing judge found, on November 8, 2013, the Board filed a motion to
dismiss in Case No. 866. And, the parties do not dispute that, after Case No. 213 (Citizens’
petition for judicial review) and Case No. 220 (Normandy’s second petition for judicial
review) had been filed, on December 9, 2013, the Board filed in Case No. 866 a
supplemental motion to dismiss, which sought to dismiss not only Case No. 866, but also
Case No. 213 and Case No. 220, cases in which Citizens and Normandy sought judicial
review of the Board’s determination as to the accuracy of Citizens’ summary of the law
and the sufficiency of signatures submitted by Citizens, respectively. The hearing judge
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found that the Board erroneously filed the supplemental motion to dismiss only in Case
No. 866. On December 11, 2013, after the Board filed the supplemental motion to dismiss,
the circuit court issued a notice of hearing in Case No. 866, scheduling a hearing on the
motion to dismiss for January 8, 2014. Neither Ms. Gray nor her clients received a notice
of hearing, although the petition for judicial review that they filed, Case No. 213, was the
subject, in part, of the Board’s supplemental motion to dismiss.
Under these circumstances, we conclude that the hearing judge’s finding that “Ms.
Gray and her clients were entitled to notice [of the January 8, 2014 hearing] and to appear
[at the hearing] because their case, No. 2[13,] was the subject, in part, of the Board’s
Motion [to Dismiss]” was not clearly erroneous. As discussed above, the Board did not
provide Carol and Ms. Markovitz the required notice of the ability to oppose or otherwise
participate in Case No. 866, and the Board erroneously filed the supplemental motion to
dismiss only in Case No. 866, even though the Board’s supplemental motion to dismiss
sought to dismiss Citizens’ petition for judicial review that had been filed in Case No. 213.
Given the substance of Case No. 213 (Citizens’ petition for judicial review) and Case No.
230 (Citizens’ declaratory judgment action), as well as Case No. 220 (Normandy’s second
petition for judicial review), it is evident that Citizens intended to oppose the position taken
by Normandy in its petition for judicial review filed in Case No. 866, and that, if given
timely notification of the right to respond, would have filed a timely notice of participation
in Case No. 866. Therefore, we overrule the Commission’s exception.
Second, the Commission excepts to the hearing judge’s finding that Ms. Gray had a
good faith basis to believe that the January 8, 2014 hearing was an ex parte meeting
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between the circuit court, the Board, and Normandy. The Commission contends that Ms.
Gray could not have had a good faith belief that the hearing was an ex parte meeting
because the facts do not support such a belief. We overrule the Commission’s exception.
As explained above, the hearing judge’s finding that Ms. Gray and her clients were entitled
to notice of, and the ability to participate in, the January 8, 2014 hearing was not clearly
erroneous. Moreover, at the January 8, 2014 hearing, Normandy’s counsel discussed the
four cases—Case No. 866, Case No. 213, Case No. 220, and Case No. 230—with the circuit
court, and Normandy’s and the Board’s counsel recommended consolidation of the cases.
Normandy’s counsel discussed with the circuit court the sequential order in which the
outstanding motions in the cases should be addressed. Although the circuit court did not
decide the Board’s motion to dismiss at the hearing, the circuit court and Normandy’s and
the Board’s counsel discussed matters pertaining to all four cases and the circuit court
issued an order consolidating the cases after the hearing. Certainly, Ms. Gray should have
been afforded notice of the hearing and an opportunity to be present. Under the
circumstances above, the hearing judge’s finding that Ms. Gray had a good faith belief that
the hearing had been an ex parte meeting between the circuit court, the Board, and
Normandy was not clearly erroneous.
Third, the Commission excepts to the hearing judge’s failure to find that Citizens
received timely service of a copy of the motion to consolidate and that Citizens did not
oppose the consolidation. The Commission contends that Ms. Gray testified at deposition
that she received a service copy of the motion to consolidate and that she did not file an
opposition to the motion to consolidate. The Commission is correct, and we sustain the
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exception. However, we note that whether Citizens received timely service of the motion
to consolidate and failed to oppose the consolidation is not determinative of whether Mr.
Dyer or Ms. Gray engaged in misconduct in this case.
At deposition during the attorney discipline proceeding, Ms. Gray indeed testified
that she received “a service copy” of the motion to consolidate and that Citizens did not
file an opposition in response to the motion to consolidate. Contrary to the Commission’s
assertion—that, following the entry of the consolidation order, Ms. Gray filed numerous
papers in the circuit court and appellate courts to reverse or modify an order granting a
motion that Ms. Gray timely received and did not oppose—Ms. Gray’s filings after she
discovered the consolidation order had been entered indicate that Ms. Gray did not take
issue with the consolidation per se. Rather, Ms. Gray’s objection was that, in consolidating
the cases under Case No. 866, the three underlying individual cases had been closed. In a
reply filed on March 4, 2014, Ms. Gray specifically stated that she “believe[d] these cases
should be consolidated . . . , but the underlying cases cannot be closed or lose their
individual identity.” From Ms. Gray’s perspective, she was not simply filing papers to
reverse or modify the granting of a motion to consolidate that she did not oppose despite
having the opportunity to do so. Instead, as the hearing judge’s findings demonstrate, Ms.
Gray did not oppose consolidation, but rather she opposed the effect of the consolidation
as reflected by the circuit court’s docket, i.e., the closing of the three underlying cases.
Although Ms. Gray did not oppose consolidation, she apparently believed that
closure of the individual cases was an error that potentially disadvantaged her clients. This
viewpoint was based, in part, upon the circuit court telling Ms. Gray that there was a
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“mistake in the record” and that it was going to be “correct[ed].” Despite the circuit court’s
oral advice, prior to Ms. Gray filing the first appeal, the alleged mistake had not been
corrected. And, it appears that both the circuit court and Ms. Gray were confused as to the
appropriate docket entries to be made upon the consolidation of cases and as to whether
the individual cases should be closed.17 Thus, although Citizens received a timely service
copy of the motion to consolidate and did not oppose the consolidation, Ms. Gray’s receipt
of the motion to consolidate is not dispositive of the charged violations of the MLRPC.
Fourth, the Commission excepts to the hearing judge’s alleged failure to make
findings of material facts concerning the first round of appellate filings, specifically, that,
in the first petitions for writs of certiorari, Ms. Gray asked this Court to review Citizens’
judicial review case and declaratory judgment cases, when, according to the Commission,
the petitions for a writ of certiorari were not permitted by law, and Ms. Gray had
represented that the circuit court had fully adjudicated all claims. The Commission points
out that this Court ultimately dismissed the petitions for writs of certiorari for lack of
appellate jurisdiction because the circuit court had not entered final judgment and no
appealable interlocutory judgment or collateral order had been issued.
We overrule the Commission’s exception. The record reflects that the hearing judge
made numerous findings of fact with respect to the first round of appellate filings, including
17
It may well have been the practice of the Clerk’s Office for the circuit court to make
docket entries marking individual cases closed or inactive upon their consolidation. Ms.
Gray, however, believed this to be an error or an indication that the individual cases would
not proceed. At a minimum, the circuit court did not disabuse Ms. Gray of this belief.
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that Ms. Gray stated in her first two petitions for a writ of certiorari that the circuit court
had adjudicated all claims in the action in their entirety. Thus, we turn to the second aspect
of the Commission’s exception: that the hearing judge failed to find that the first round of
appellate filings was not supported by fact or law. Contrary to the theory underlying the
Commission’s exception, the hearing judge found that Ms. Gray had a reasonable belief
for stating in the petitions for a writ of certiorari that the circuit court had adjudicated all
claims in Case No. 213 (Citizens’ judicial review case) and Case No. 230 (Citizens’
declaratory judgment action). According to the hearing judge, Ms. Gray’s belief stemmed
from the circumstance that the docket continued to show that the underlying cases had been
closed, and that the circuit court had indicated that the mistake would be corrected but that
the circuit court had denied a motion to alter or amend. Thus, we conclude that the hearing
judge was not clearly erroneous when he declined to adopt Bar Counsel’s suggested
finding—that the first and second rounds of appellate findings were unsupported by fact or
law.
Fifth, the Commission excepts to the hearing judge’s failure to find that the second
round of appellate filings—i.e., the April 1, 2014 notice of appeal to the Court of Special
Appeals and the April 2, 2014 petition for a writ of certiorari seeking review of the circuit
court’s order postponing the April 1, 2014 hearing on the judicial review matters and
indicating that the circuit court retained jurisdiction of the case—was not supported by fact
or law. We overrule the Commission’s exception. Again, the Commission takes no issue
with the hearing judge’s findings of fact related to the second round of appellate filings,
and instead excepts to the hearing judge’s failure to find, “without any explanation or
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analysis,” that the second round of appellate findings were unsupported by law. The record
demonstrates that the hearing judge noted that, in filing the petition for a writ of certiorari
on April 2, 2014, Ms. Gray specifically advised this Court of Citizens’ “unprecedented
request” to ask that this Court take jurisdiction in Case No. 866 “even though there ha[d]
been no final judgment in th[e] matter.” In other words, Ms. Gray readily acknowledged
that the petition for a writ of certiorari was unusual in that there was not a final judgment
in the case, but that, because in Ms. Gray’s view, the petition raised issues that were of
significance, the grant of certiorari would be appropriate.
In contentious cases involving complex and time-sensitive matters, such as election
laws, lawyers may be more likely to file appeals quickly. However, not every lawyer who
files an appeal or a petition for a writ of certiorari that is dismissed is charged with violating
the MLRPC. Indeed, a lawyer who files appellate papers that are dismissed simply because
the lawyer is wrong about the law or the lawyer has, as the hearing judge found, a good
faith basis to believe a certain fact that turns out to be incorrect, is generally not subject to
discipline under the MLRPC. This is not a case where a lawyer filed an appeal or petition
for a writ of certiorari that was blatantly unsupported by the law or facts of the particular
case. Therefore, we conclude that the hearing judge was not clearly erroneous when he
declined to adopt Bar Counsel’s suggested finding—that the first and second rounds of
appellate findings were unsupported by fact or law.
Sixth, the Commission excepts to the hearing judge’s failure to make findings of
material facts concerning the third round of appellate filings, including the following: (1)
that Respondents did not seek relief from the circuit court’s May 1, 2014 order; (2) that
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there was no basis in the law for the filing of an interlocutory appeal; (3) that, prior to May
6, 2014, Ms. Long had not filed anything in the circuit court related to Case No. 866 and
that the petition had no basis in law or fact; (4) that the May 1, 2014 order did not deny the
motion to quash discovery and Ms. Long did not file any motion in the circuit court; (5)
that the two questions presented in the petition for a writ of certiorari were not supported
by fact or law; and (6) that Respondents were attempting to have this Court litigate, in the
first instance, the motion for protective order, although the circuit court had not ruled on
the motion. The third round of appellate filings concerned Ms. Gray’s attempt to seek
appellate review of the circuit court’s April 30, 2014 staying of discovery and the
declaratory judgment action. In the petition for a writ of certiorari filed in the third round
of appellate filings, Respondents argued that the circuit court’s rulings were final as to the
two of the nonparty circulators, Ms. Wasserman and Ms. Long, and that an interlocutory
appeal was appropriate.
We overrule the Commission’s exception. Again, the Commission does not except
to the findings of fact that the hearing judge made with respect to the third round of
appellate filings, but rather contends that the hearing judge failed to make specific findings
of fact. The hearing judge heard testimony in the attorney discipline proceeding and set
forth detailed findings of fact relevant to the third round of appellate filings. We observe
that, with respect to both the second and third round of appellate filings, the hearing judge
specifically found that neither this Court nor the Court of Special Appeals raised any issue
that Mr. Dyer or Ms. Gray acted in bad faith or without substantial justification. Nor did
Mr. Erskine, the complaining party in these disciplinary proceedings, seek sanctions for
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the filings related to the third round of appellate filings. Essentially, the Commission asks
this Court to find clearly erroneous that the hearing judge did not make certain findings of
fact with respect to the third round of appellate filings where the hearing judge concluded
as to those filings that neither the appellate courts nor opposing counsel raised any issue as
to misconduct on Respondents’ part. We decline to do so.
Seventh, the Commission excepts to the hearing judge’s failure to find that the fifth
round of appellate filings was not supported by fact or law. The record reflects that the
hearing judge made, in pertinent part, the following findings of fact with respect to the fifth
round of appellate filings: On June 30, 2014, after Mr. Erskine had scheduled depositions
and served subpoenas on the plaintiffs and approximately thirty petition circulators,
Respondents filed a notice of interlocutory appeal and request for expedited review on
behalf of the plaintiffs and two of the nonparty circulators, Ms. Wasserman and Ms. Long.
In response, Normandy filed a motion to dismiss the appeal for a lack of appellate
jurisdiction; and Respondents opposed the motion to dismiss. On August 6, 2014, the
Court of Special Appeals issued an order dismissing the interlocutory discovery appeal,
stating that the appeal was not allowed by law. In the meantime, on July 14, 2014,
Respondents filed in this Court an “Emergency Petition for Direct Appeal Writ of
Certiorari, Ancillary Injunctive Relief and Expedited Review,” in which they stated that
the circuit court had “adjudicated all claims in each of the underlying cases appealed in
their entirety, however, on June 17, 2014, the [circuit] court denied [their] motion for res
judicata.” Normandy filed an answer to the emergency petition. This Court denied the
emergency petition. As explained above, that Respondents filed an appeal and a petition
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for a writ of certiorari that were dismissed and denied, respectively, is not alone dispositive
of whether they violated the MLRPC, even if Respondents were mistaken as to the law or
the ability to pursue the appeal. Therefore, we overrule the Commission’s exception.
Eighth, the Commission excepts to the hearing judge’s failure to find that the final
round of appellate filings was not supported by fact or law. The final round of appellate
filings concerned Respondents’: (1) petitions for a writ of certiorari seeking review of: (a)
the circuit court’s orders denying a motion for protective order and granting a motion to
compel; (b) the Court of Special Appeals’ dismissal of Case No. 2091; and (c) the Court
of Special Appeals’ unreported opinion in Case No. 1627; and (2) Respondents’ notices of
appeal to the Court of Special Appeals concerning: (a) the circuit court’s imposition of
sanctions and the circuit court’s discovery rulings; and (b) the circuit court’s order
dismissing the declaratory judgment action. The Court of Special Appeals issued an order
dismissing Case No. 2091 and issued an unreported opinion dismissing the appeal filed in
Case No. 1627, and this Court entered orders denying the petitions for a writ of certiorari.
The Commission contends that undisputed facts demonstrate that Respondents’
filings contained arguments that had previously been presented, or had not been preserved
for appeal. We overrule the Commission’s exception. The Commission takes no issue
with the findings of fact that the hearing judge made with respect to the final round of
appellate filings, and indeed, states that the hearing judge “correctly found” the facts as
stated in the hearing judge’s opinion. The Commission’s exception appears to be limited
to the hearing judge’s decision not to accept its suggested finding that the final round of
appellate filings was not supported by law. The hearing judge found that, after the circuit
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court awarded sanctions against them, Respondents noted an appeal to the Court of Special
Appeals, and that, after the circuit court dismissed the declaratory judgment action,
Respondents noted another appeal to the Court of Special Appeals. The hearing judge
found that two separate cases were opened in the Court of Special Appeals, Case No. 1627
and Case No. 2091; ultimately, the Court of Special Appeals dismissed Case No. 2091 for
Respondents’ failure to file an appellants’ brief and issued an unreported opinion
dismissing Case No. 1627, concluding that the challenges to the circuit court’s discovery
orders were moot and that Citizens lacked standing to challenge the sanctions imposed
against Respondents. Respondents filed a petition for a writ of certiorari as to the dismissal
of Case No. 2091 and the unreported opinion issued in Case No. 1627; this Court denied
certiorari. Put simply, that the hearing judge declined to draw the conclusion that the
Commission urged does not mean that the hearing judge’s failure to do so was clearly
erroneous. Further, consistent with our discussion of the first, second, third, and fifth
rounds of appellate filings, we observe that had the hearing judge found the final round of
appellate filings to be without basis in fact or law, so long as it was not frivolous, this
finding alone would not necessarily support a finding that Respondents had violated the
MLRPC.
Ninth, the Commission excepts to the hearing judge’s findings concerning the
discovery issues in the declaratory judgment action. Specifically, the Commission
contends that the hearing judge erred in failing to find that, prior to June 27, 2014,
Respondents had not advised their clients that the depositions had been scheduled for July
8, 2014. According to the Commission, there is no evidence that Mr. Dyer or Ms. Gray
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advised their clients of the deposition dates or that any of the parties were aware that their
depositions had been scheduled prior to June 27, 2014. The Commission argues that the
hearing judge erred in failing to find that, contrary to the circuit court’s June 17, 2014 order,
Ms. Gray did not turn responsive documents in her possession over to Normandy. The
Commission asserts that the hearing judge erred in finding that Respondents explained to
their clients the nature of the sanctions they could face if they did not attend the depositions.
The Commission maintains that the hearing judge erred in failing to find that Respondents
advised their clients, both the parties and nonparty petition circulators, not to appear for
the scheduled depositions in violation of the circuit court’s June 17, 2014 order and the
Maryland Rules. The Commission contends that the hearing judge erred in failing to find
that Respondents did not convey to their clients Normandy’s offer to attend a rescheduled
deposition and avoid the filing of a motion for a writ of body attachment. According to the
Commission, “There is no affirmative evidence that the Respondents conveyed the offer.”
We overrule the Commission’s exception. The Commission attempts to supplement
the hearing judge’s findings of fact concerning discovery so that the findings of fact align
with the Commission’s view. Significantly, the Commission does not except to any of the
findings of fact that the hearing judge actually made related to discovery. For example,
the hearing judge found that, on June 20, 2014, Mr. Erskine emailed all counsel and advised
of his intention to take video depositions of the parties on July 8, 2014, and of twenty-five
petition circulators on July 9 and 10, 2014; on June 24, 2014, after receiving no response
of any scheduling conflicts, Normandy issued notices of depositions to the parties for July
8, 2014; between June 23 and 26, 2014, Mr. Erskine and his staff prepared and served
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subpoenas directed to the individual parties and to approximately thirty petition circulators;
on June 27, Respondents advised their clients that depositions had been scheduled for July
8, 2014; and, Respondents “informed their clients of the depositions and correctly informed
them of their rights with respect to attending.” Essentially, the Commission contends that
the hearing judge failed to make findings that would be inconsistent with the facts that the
hearing judge determined. It is within the province “of the hearing judge to credit or
discredit evidence, including testimony, and resolve conflicting versions of events. As
such, we must give due regard to the opportunity of the hearing judge to assess the
credibility of witnesses.” Attorney Grievance Comm’n v. Landeo, 446 Md. 294, 320-21,
(2016) (citation omitted).
Tenth, the Commission excepts to the hearing judge’s failure to find that
Respondents made statements with reckless disregard as to their truth or falsity concerning
the qualifications or integrity of judges and the Clerk of the circuit court. We overrule the
Commission’s exception. As an initial matter, we note that in the findings of fact the
hearing judge set forth statements made by Respondents, including the full text of the
editorial published by the Baltimore Sun, as well as a quotation attributed to Ms. Gray.
That the hearing judge did not make a finding of fact that Respondents made statements
with reckless disregard as to their truth or falsity concerning the integrity of the circuit
court and Clerk is consistent with the hearing judge’s conclusion that Respondents did not
violate MLRPC 8.2(a) (Judicial and Legal Officers). Specifically, in concluding that there
was not clear and convincing evidence that Respondents violated MLRPC 8.2(a), the
hearing judge explained that none of the “criticisms of the admittedly mishandled case
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amount to false statements” and that, “[a]t no time did the Respondents criticize a judge,
or any other officer of the Court with either knowledge of or a reckless disregard for the
truth.” And, as to the Baltimore Sun article, the hearing judge concluded that, although the
editorial was critical of Mr. Erskine, it did not “contain a false statement as to the
qualifications of a judge, legal officer, []or any candidate.” As to Ms. Gray’s alleged
statement concerning the Court of Special Appeals—“Unreported opinions are the way the
appellate courts do their political dirty work . . . that tells you a lot.”—the hearing judge
found that there was not clear and convincing evidence to “prove what was said, but only
what was printed.”
Eleventh, the Commission excepts to the hearing judge’s “non-material findings” in
which the hearing judge allegedly “demonstrated animus toward the [Commission] and its
counsel at trial.” The Commission asserts that it excepts to such statements because the
hearing judge’s statements concerning Bar Counsel “leave[s] the impression that the
disciplinary case itself was unfair to Respondents and that specific actions of counsel were
‘unfounded,’ ‘biased,’ ‘unreasonable,’ ‘frivolous,’ ‘unwarranted,’ and ‘lacking in
objectivity.’” The Commission also excepts to the “attacks on Mr. Erskine,” who, as the
complainant, “acted in the best traditions of the Bar” and “chose to honor his commitment
as an attorney to report misconduct.”
We overrule the Commission’s exception. The “findings” to which the Commission
directs this Court’s attention appear in the introductory discussion section to the hearing
judge’s conclusions of law and in the hearing judge’s conclusions of law. These statements
are a part of the hearing judge’s analysis in connection with the conclusions of law, and
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are not set forth as findings of fact and, as such, have not been summarized above by this
Court. Nor have the alleged findings been relied upon by this Court in sustaining or
overruling any of the Commission’s exceptions.
Finally, the Commission excepts to the hearing judge’s failure to make findings
concerning aggravating factors, namely, bad faith obstruction of the attorney discipline
proceeding and submission of false evidence, false statements, or other deceptive practices
during the attorney discipline proceeding. We overrule the Commission’s exception. In
an attorney discipline proceeding, the “deference accorded to the hearing judge’s findings
is appropriate, in part, because the fact finder is in the best position to assess the demeanor-
based credibility of witnesses” and “[t]he hearing judge is permitted to pick and choose
which evidence to rely upon from a conflicting array when determining findings of fact.”
Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50 (2006) (citations and internal
quotation marks omitted). Furthermore, “[i]n determining an appropriate sanction for a
lawyer’s misconduct, this Court considers . . . aggravating factors and/or mitigating
factors.” Landeo, 446 Md. at 345 (quoting Attorney Grievance Comm’n v. Shuler, 443 Md.
494, 506 (2015)). Here, given that the hearing judge concluded that neither Mr. Dyer nor
Ms. Gray engaged in misconduct, and because with the exception of a violation of MLRPC
8.1(b) with respect to Mr. Dyer, this Court agrees with the hearing judge, we conclude that
it was not necessary for the hearing judge to make findings of fact relevant to aggravating
factors.
In sum, we sustain the Commission’s third exception to the hearing judge’s findings
of fact as to Ms. Gray’s receipt of a copy of the Board’s motion to consolidate, but
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otherwise overrule the remainder of the Commission’s exceptions to the hearing judge’s
findings of fact. The procedural history of the underlying cases was dense and complex,
and the litigation itself was highly contentious. The hearing judge made detailed findings
of fact based on the evidence presented to him over the course of sixteen days. The record
in this attorney discipline case is voluminous, and the hearing judge more than adequately
parsed through it in making the findings of fact. That the hearing judge may not have made
certain findings of fact urged by the Commission does not render the findings of fact that
were made clearly erroneous.
B. Conclusions of Law
Respondents do not except to the hearing judge’s recommended conclusions of law.
Conversely, the Commission excepts to the hearing judge’s failure to find that Respondents
violated the MLRPC, namely, 1.1, 1.3, 1.4, 3.1, 3.2, 3.4, 4.4, 8.1, 8.2, 8.4(c), 8.4(d), and
8.4(a). For the following reasons, we (1) sustain the Commission’s exception to the hearing
judge’s conclusion that Mr. Dyer did not violate MLRPC 8.1(b); (2) sustain the
Commission’s exception to the hearing judge’s conclusion that Mr. Dyer did not violate
MLRPC 8.4(a); (3) overrule the Commission’s remaining exceptions to the hearing judge’s
conclusions of law; and (4) uphold the rest of the hearing judge’s conclusions of law.
MLRPC 1.1 (Competence)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 1.1. The Commission contends that Respondents violated MLRPC 1.1
by, among other things, filing notices of appeal and petitions for a writ of certiorari that
were not permitted by law or preserved for appellate review, continually arguing that the
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consolidation order closed three of the cases and that the circuit court engaged in an ex
parte meeting even though such arguments were allegedly not supported by law or facts,
failing to file responses to Normandy’s two motions for sanctions filed in the circuit court,
and failing to take any action on behalf of the nonparty petition circulators whom they
represented such that the circuit court could have ruled on the June 2014 subpoenas issued
by Normandy. The Commission argues that Respondents engaged in a series of mistakes
and omissions that, taken together, constitute a violation of MLRPC 1.1. We overrule the
exception.
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” MLRPC 1.1. Comment [1] to MLRPC 1.1
provided, in pertinent part,
In determining whether a lawyer employs the requisite knowledge and skill
in a particular matter, relevant factors include the relative complexity and
specialized nature of the matter, the lawyer’s general experience, the
lawyer’s training and experience in the field in question, [and] the
preparation and study the lawyer is able to give the matter[.]
Furthermore, Preamble [19] of the MLRPC stated, in pertinent part:
The [MLRPC] presuppose that disciplinary assessment of a lawyer’s conduct
will be made on the basis of the facts and circumstances as they existed at
the time of the conduct in question and in recognition of the fact that a lawyer
often has to act upon uncertain or incomplete evidence of the situation.
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 1.1. Examining Respondents’
conduct and given the complexity and contentious nature of the underlying litigation, we
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conclude that, although Respondents did not provide perfect representation, their
representation of Citizens was competent. We note, as an initial matter, that filing an
ultimately unsuccessful lawsuit, motion, or other pleading does not mean that a lawyer is
incompetent or otherwise lacking in the legal knowledge, skill, thoroughness, and
preparation necessary for competent representation.
In this case, Respondents sought to protect their clients’ rights and interests, by
correcting what they considered to be the closure of their clients’ cases and erroneous
rulings by the circuit court. As discussed above, the hearing judge found that Respondents
had a good faith basis for their belief with respect to the consolidation order and the closing
of the three underlying cases, and the lack of hearing notice for the January 8, 2014 hearing.
As to discovery and the scheduled depositions, there is not clear and convincing evidence
that Respondents advised their clients and the nonparty circulators not to attend
depositions. Rather, the hearing judge found that Respondents advised their clients and
the nonparty circulators of the consequences that could occur as a result of not attending
depositions. Ultimately, the record supports the conclusion that it was the clients’ and
nonparty circulators’ decision to not attend depositions.
Notably, we observe that this case is not one of omission; the Commission does not
allege that Respondents failed to take necessary steps on their clients’ behalves, or made
blatant mistakes. Rather, the record demonstrates that Respondents attended all hearings,
with the exception of the January 8, 2014 hearing, for which they did not receive notice;
provided adequate representation at those hearings; filed motions, pleadings, papers,
appeals, and petitions for a writ of certiorari to remedy what they believed to be erroneous
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circuit court rulings and to protect their clients’ interests and advance the cases; and
communicated regularly with their clients. Significantly, none of Respondents’ clients
complained about the representation they received or raised any issue with respect to
Respondents’ conduct in the underlying litigation. Whether Respondents were actually
correct in their interpretation of the law and facts is not solely dispositive of a determination
as to whether Respondents violated MLRPC 1.1. That a lawyer may file a motion or
pleading that ultimately proves to be unsuccessful or even lack merit is not per se a
violation of MLRPC 1.1. Here, none of Respondents’ clients were injured as a result of
their representation through any omission on Respondents’ part or through Respondents
taking an incorrect action on their clients’ behalves. Cf. Attorney Grievance Comm’n v.
Allenbaugh, 450 Md. 250, 267 (2016) (concluding that lawyer violated MLRPC 1.1 by, in
one matter, “repeatedly fail[ing] to file a brief and appendix in [a client]’s appeal, even
after being granted an extension,” and, in another matter, “fail[ing] to identify the proper
type of visa for which [a client] and his family might qualify, instead advising [the client]
to obtain a[ specific] visa, for which [the client] was ineligible”); Attorney Grievance
Comm’n v. Haley, 443 Md. 657, 668 (2015) (concluding that lawyer violated MLRPC 1.1
by, among other things, in one matter, “fail[ing] to prepare and submit any pleadings or
take any action in furtherance of [a client]’s case,” and, in another matter, “includ[ing] a
certificate of service with an incorrect address for [the client]’s ex-wife” and “fail[ing] to
include with [a] motion a domestic case information report”).
This case illustrates the fine line between an alleged lack of competency and zealous
representation of one’s clients. This Court must determine when zealous representation
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crosses a line and constitutes sanctionable misconduct calling into question a lawyer’s
competency. In doing so, we must strike a balance between chilling a lawyer’s ability to
represent his or her clients and preserving the integrity of the MLRPC and MLRPC 1.1
specifically. We start with the principle that not all overzealous representation is
necessarily incompetent representation. In this case, under all of the circumstances, we
decline to conclude that Respondents’ representation, which was certainly zealous, and,
indeed, at times, overzealous, evidenced a lack of competency. Thus, we determine that
the hearing judge was correct in concluding that there is not clear and convincing evidence
that Respondents failed to provide competent representation to their clients.
MLRPC 1.3 (Diligence)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 1.3. The Commission contends that Respondents “demonstrated a
complete lack of diligence in educating themselves about the rules of civil procedure in the
circuit and appellate courts.” We overrule the exception.
“A lawyer shall act with reasonable diligence and promptness in representing a
client.” MLRPC 1.3.
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 1.3. The record does not
demonstrate that Respondents failed to act with promptness and diligence in representing
their clients. Respondents sought to expeditiously move the underlying litigation forward
so that a referendum question concerning the Council’s enactment of an ordinance adopting
the 2013 Comprehensive Zoning Plan could be placed on the November 2014 ballot. There
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is not clear and convincing evidence that Respondents were less than diligent in
representing their clients. Indeed, none of their clients filed complaints with Bar Counsel
or testified in the disciplinary proceeding that they were dissatisfied with Respondents’
representation or that Respondents failed to promptly pursue the underlying litigation.
As to the Commission’s contention that Respondents were not diligent with respect
to learning the rules of civil and appellate procedure, we conclude that, although
Respondents did not succeed in either this Court or the Court of Special Appeals, they did
not demonstrate a failure to diligently pursue the matter on their clients’ behalves. As
Comment [1] to MLRPC 1.3 provided, “A lawyer must [] act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
Certainly, Respondents did not exhibit a lack of care and attention to the underlying
litigation or neglect the case.
MLRPC 1.4(a)(1), 1.4(a)(2), and 1.4(b) (Communication)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 1.4(a)(1), 1.4(a)(2), and 1.4(b). The Commission contends that, should
this Court sustain its ninth exception to the findings of fact, the facts would support a
conclusion that Respondents violated both MLRPC 1.4(a) and 1.4(b) by failing to
communicate with the parties about the proposed dates for depositions in June and July
2014, failing to communicate with Ms. Markovitz as to rescheduling her deposition, and
failing to advise their clients that they could be subject to body attachments if they failed
to appear for their duly noted depositions. We overrule the exception.
MLRPC 1.4 provided, in pertinent part,
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(a)A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule
1.0(f), is required by these Rules; [and]
(2) keep the client reasonably informed about the status of the
matter[.]
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Comment [5] to MLRPC 1.4 explained that “[t]he client should have sufficient information
to participate intelligently in decisions concerning the objectives of the representation and
the means by which they are to be pursued . . . . Adequacy of communication depends in
part on the kind of advice or assistance that is involved.”
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 1.4. As discussed above, we
overruled the Commission’s ninth exception concerning the discovery issues in the
declaratory judgment action. Significantly, none of Respondents’ clients complained about
a lack of communication or deficient communication. Indeed, the record demonstrates that
Respondents consistently kept their clients informed about the status of the underlying
litigation, including holding a group meeting with their clients and other nonparty
circulators, including those who were not their clients, to discuss the depositions scheduled
by Mr. Erskine. At that meeting, Respondents advised the clients and nonparty circulators
about the types of sanctions that might occur as a result of not attending depositions, and
although they advised that they believed the subpoenas violated the nonparty circulators’
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First Amendment rights, they also advised that the nonparty circulators should either
comply with the subpoena or seek counsel.
Thus, there is not clear and convincing evidence that Respondents advised their
clients and nonparty circulators to not attend the depositions. The record reflects that,
ultimately, Respondents’ clients made their own decisions as to whether to attend the
scheduled depositions after receiving advice from counsel. Similarly, there is not clear and
convincing evidence that Respondents failed to advise their clients of Mr. Erskine’s
“offer,” made by email on July 10, 2014, to compromise on seeking writs of body
attachment against each nonparty circulator who had failed to appear at their scheduled
depositions if those nonparty circulators contacted Mr. Erskine to reschedule.
As to Respondents’ communication with Ms. Markovitz regarding the deposition,
notably, Ms. Markovitz has not complained about any communication or lack thereof
between herself and Respondents. The record demonstrates that Respondents notified Ms.
Markovitz of the scheduled deposition, and that, due to her scheduling conflict and time
constraints, Ms. Markovitz sought the assistance of another lawyer, Mr. Holzer, in
contacting Mr. Erskine about the conflict. Indeed, Ms. Markovitz testified before the
hearing judge that she was “not displeased” with Respondents’ representation and that it
was rare for lawyers in Howard County to represent citizens in controversial zoning cases.
Thus, there is not clear and convincing evidence that Respondents failed to inform Ms.
Markovitz or any other client of circumstances related to their cases.
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MLRPC 1.16(a)(1) (Declining or Terminating Representation)
MLRPC 1.16(a)(1) provided, “Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced, shall withdraw from the
representation of a client if: [] the representation will result in violation of the [MLRPC]
or other law[.]” (Paragraph break omitted.)
The Commission does not except to the hearing judge’s conclusion that there was
not clear and convincing evidence that Respondents violated MLRPC 1.16(a)(1).
Moreover, the record is devoid of any evidence that either Mr. Dyer or Ms. Gray was
required to withdraw from representing Citizens. According to the hearing judge, during
the underlying litigation, Mr. Erskine requested that the circuit court permit him to call Ms.
Gray, who had been a petition circulator, as a witness, but the circuit court denied the
request. Absent this request, which was denied, there is no reason why Ms. Gray, who had
participated in some capacity as a petition circulator, would have been ineligible to serve
as counsel for Citizens, where there was no expectation or indication that Ms. Gray would
be a necessary witness and where Ms. Gray did not, in actuality, testify as a witness.
Therefore, we agree with the hearing judge’s conclusion that there was not clear and
convincing evidence that Respondents violated MLRPC 1.16(a)(1).
MLRPC 3.1 (Meritorious Claims and Contentions)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 3.1. The Commission contends that Respondents continually argued
that the consolidation order closed three cases, and that all filings related to that argument
were frivolous and not supported by law or fact. The Commission argues that all of
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Respondents’ appellate filings, with the exception of the appeal on the merits of the judicial
review cases, were frivolous and not supported by law. We overrule the exception.
MLRPC 3.1 provided,
A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous, which
includes, for example, a good faith argument for an extension, modification
or reversal of existing law. A lawyer may nevertheless so defend the
proceeding as to require that every element of the moving party’s case be
established.
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 3.1. With respect to the appellate
filings, as discussed in detail above, we overrule the Commission’s exceptions to the
hearing judge declining to find that various rounds of appellate filings were not supported
by fact or law. And, as explained, that an appellate filing may ultimately be unsuccessful,
and indeed even dismissed, does not mean that a lawyer violates MLRPC 3.1 for making
such a filing. Additionally, we note that there is no indication in the record that this Court
or the Court of Special Appeals ever awarded sanctions against Respondents in connection
with any of the appellate filings, even though Normandy had asked the Court of Special
Appeals to do so.
As to arguments concerning the consolidation order, there is not clear and
convincing evidence that Respondents lacked a basis for filings in which they argued that
the circuit court closed the three cases other than Case No. 866. For example, in the first
round of appellate filings, the hearing judge found that Ms. Gray had a reasonable belief
for stating in the petitions for a writ of certiorari that the circuit court had adjudicated all
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claims in Case No. 213 and Case No. 230, given that the docket continued to show that the
cases had been closed, rather than consolidated. Indeed, on February 19, 2014, at a status
conference in the circuit court, Ms. Gray explained her concerns about the consolidation
order and the fact that the docket reflected that the cases were closed and that she had been
told by the Clerk’s Office that the cases were closed. The circuit court agreed that it could
“clear up the docket if that’s a problem.” At the March 12, 2014 motions hearing, the
circuit court again acknowledged that “[t]here may be some issue of the effect of the
consolidation,” and that “[t]here [wa]s a mistake in the record” that it was “going to
correct.” Because the docket continued to show that the cases were closed, the hearing
judge found that Respondents’ filings related to the effect of the consolidation order were
not frivolous as the Commission contends. We agree with the hearing judge’s conclusion.
MLRPC 3.2 (Expediting Litigation)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 3.2. The Commission contends that Respondents violated MRPC 3.2
by pursuing unwarranted motions and appeals. We overrule the exception.
“A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client.” MLRPC 3.2. “An attorney violates [MLRPC 3.2] by delaying to
take fundamental litigation steps in pursuit of the client’s interest.” Attorney Grievance
Comm’n v. Garrett, 427 Md. 209, 226 (2012).
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 3.2. The record reflects that
Respondents did not delay in taking action on their clients’ behalves nor did they otherwise
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attempt to slow down litigation to the detriment of their clients or the opposing parties.
Respondents were seeking, on their clients’ behalves, to have the zoning issue placed on
the November 2014 ballot. The record demonstrates that, despite filing unsuccessful
motions and appeals, Respondents were not attempting to delay the litigation, and, in
actuality, did not unreasonably delay proceedings in the underlying case.
MLRPC 3.4(a), 3.4(c), and 3.4(d) (Fairness to Opposing Party and Counsel)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 3.4(a), 3.4(c), and 3.4(d). The Commission contends that Respondents
violated MLRPC 3.4 by obstructing Normandy’s access to evidence—testimony and
documentation—by, namely, advising their clients to not attend scheduled depositions.
The Commission argues that Respondents failed to comply with Normandy’s proper
discovery requests and that they concealed documentation that had evidentiary or potential
evidentiary value. We overrule the exception.
MLRPC 3.4 provided, in relevant part,
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary
value. A lawyer shall not counsel or assist another person to do any such act;
...
(c) knowingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent efforts to comply with a legally proper discovery request
by an opposing party[.]
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For example, this Court has held that a lawyer violates MLRPC 3.4(c) when he or she
“repeatedly fail[s] to appear in court and to produce documents as directed by court order.”
Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 570 (2004).
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 3.4. There is simply no evidence
that Respondents obstructed Normandy’s access to evidence, that they failed to comply
with proper discovery requests, or that they concealed documentation having potential
evidentiary value. The record demonstrates that Respondents advised their clients and the
nonparty petition circulators about the subpoenas, their belief that the subpoenas violated
the parties’ and nonparty petition circulators’ First Amendment rights, and the potential
sanctions that could occur as a result of not attending depositions. Ultimately, however,
Respondents’ clients and the nonparty petition circulators made their own independent
decisions as to whether or not to attend the depositions. Thus, that Respondents advised
their clients and the nonparty petition circulators that attending the depositions could result
in the relinquishment of their First Amendment rights did not unlawfully obstruct
Normandy’s access to evidence.
The record demonstrates that Respondents consistently opposed the scope of
Normandy’s discovery requests; indeed, the hearing judge characterized the document
request accompanying the initial subpoenas and deposition notices as “extremely broad
and outside of the scope outlined in Normandy’s Counterclaim.” Notably, this case does
not involve a complete failure of discovery or non-responsiveness on the part of
Respondents. Rather, it is evident that Respondents had concerns about discovery and their
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clients’ obligation to submit to such discovery, that they moved for a protective order in
the circuit court and were not otherwise knowingly disobeying discovery requests, and that
they attempted to provide legal advice with respect to discovery, including their concerns
about the First Amendment rights of their clients and nonparty petition circulators. This is
not a case where Respondents intentionally sought to obstruct Normandy’s access to
evidence or failed to make reasonably diligent efforts to comply with legally proper
discovery requests. Finally, there is no evidence that Respondents concealed documents
that had potential evidentiary value by, for example, destroying documents or hiding
documents.
MLRPC 3.7(a) (Lawyer as Witness)
MLRPC 3.7(a) provided,
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on
the client.
The Commission does not except to the hearing judge’s conclusion that there was
not clear and convincing evidence that Respondents violated MLRPC 3.7. Moreover, the
record does not contain clear and convincing evidence that either Mr. Dyer or Ms. Gray
acted as an advocate in a case in which they were likely to be necessary witnesses. There
is no evidence that Respondents, having served as petition circulators, and, in Ms. Gray’s
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case, as a petition circulator organizer and trainer, were likely to be necessary witnesses
such that they were not permitted to serve as lawyers for Citizens or that they in any way
impermissibly combined their roles as advocates with that of fact witnesses. Furthermore,
as explained above, there is not clear and convincing evidence that Respondents knew or
should have known that they were likely to be called as witnesses such that they should not
accept representation of Citizens. Although Respondents served as petition circulators, the
record reflects that there were numerous, upwards of seventy, petition circulators, any
number of whom were available to be called as witnesses. Therefore, we agree with the
hearing judge’s conclusion that there was not clear and convincing evidence that
Respondents violated MLRPC 3.7.
MLRPC 4.4(a) and 4.4(b) (Respect for Rights of Third Person)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 4.4(a). The Commission contends that Respondents violated MLRPC
4.4(a) by filing “numerous frivolous papers and ma[king] numerous frivolous arguments
during the pendency of the referendum litigation.” We overrule the exception.
MLRPC 4.4(a) and (b) provided:
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third person,
or use methods of obtaining evidence that the lawyer knows violate the legal
rights of such a person.
(b) In communicating with third persons, a lawyer representing a client in a
matter shall not seek information relating to the matter that the lawyer knows
or reasonably should know is protected from disclosure by statute or by an
established evidentiary privilege, unless the protection has been waived. The
lawyer who receives information that is protected from disclosure shall (1)
terminate the communication immediately and (2) give notice of the
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disclosure to any tribunal in which the matter is pending and to the person
entitled to enforce the protection against disclosure.
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 4.4(a). The record contains no
evidence that Respondents took any action that was intended to embarrass, delay, or burden
Mr. Erskine, Normandy, the Board, or any third person. Similarly, there is no evidence
whatsoever that Respondents used methods of obtaining evidence that violated the legal
rights of any third person.
Similarly, we conclude that there was not clear and convincing evidence that
Respondents violated MLRPC 4.4(b). The hearing judge made no conclusion of law with
respect to the charged violation of MLRPC 4.4(b), and the Commission has not excepted
to the lack of a conclusion that Respondents violated MLRPC 4.4(b). There is no evidence
that, in communicating with third persons, either Mr. Dyer or Ms. Gray sought information
that they knew or should have known was protected from disclosure.
MLRPC 8.1(b) (Disciplinary Matters)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 8.1(b). The Commission contends that Respondents failed to respond,
with complete and relevant information, to its lawful requests for information. We overrule
the exception with respect to Ms. Gray, but sustain the exception with respect to Mr. Dyer.
“[A] lawyer in connection with a disciplinary matter, shall not . . . fail to disclose a
fact necessary to correct a misapprehension known by the person to have arisen in the
matter, or knowingly fail to respond to a lawful demand for information from an admissions
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or disciplinary authority[.]” MLRPC 8.1(b). This Court has repeatedly held that a lawyer
who knowingly fails to respond to Bar Counsel violates MLRPC 8.1(b). See Garrett, 427
Md. at 226 (“It goes without saying that [the lawyer]’s failures to respond to Bar Counsel’s
requests for information in connection with any of the nine investigations constitute nine
separate violations of [MLRPC] 8.1.”); Attorney Grievance Comm’n v. Kremer, 432 Md.
325, 336 (2013) (“Bar Counsel asked repeatedly [for the lawyer] to respond to the Petition,
but he did not. . . . [The lawyer]’s conduct is in violation of MLRPC 8.1(b).”). And, in
Attorney Grievance Commission v. Bridges, this Court held that a lawyer violated MLRPC
8.1(b) where the lawyer “refused to provide requested information, failed to cooperate with
the Inquiry Panel, and destroyed relevant documents.” 360 Md. 489, 512 (2000).
Significantly, in Bridges, the lawyer had not failed to respond to Bar Counsel altogether;
rather, the lawyer responded to Bar Counsel’s letters “by challenging Bar Counsel’s
jurisdiction and requesting further information.” Id. at 513. We explained that, although
the initial complaints were directed at the lawyer’s employee, the lawyer “was required to
provide [] relevant information because M[L]RPC 8.1 mandates that an attorney must
respond adequately to the demands of a disciplinary authority concerning his or her
employees.” Id. at 513.
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Ms. Gray violated MLRPC 8.1(b); however, clear and convincing
evidence persuades us to reverse the hearing judge’s conclusion that Mr. Dyer did not
violate MLRPC 8.1(b). This case does not involve lawyers who failed to respond
altogether to Bar Counsel. Rather, the record demonstrates that both Respondents
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responded to Bar Counsel’s letters. The distinction is in the manner in which they
responded: Ms. Gray responded to the substance of the complaints; Mr. Dyer did not.
Mr. Erskine’s complaint letters to Bar Counsel, to which Bar Counsel requested that
Respondents respond, included very broad accusations of misconduct to which it may have
been difficult to respond. In the face of these broad accusations, although Ms. Gray
informed Bar Counsel that she adopted Mr. Dyer’s response, Ms. Gray also responded by
providing her view of the underlying litigation, explaining to Bar Counsel the contentious
nature of the case and that, in her opinion, Mr. Erskine’s complaint was an attempt to
intimidate her that had begun during the litigation in the circuit court. Although Ms. Gray
may not have responded to each of the allegations of misconduct set forth in Mr. Erskine’s
complaint and although Bar Counsel apparently takes issue with the substance of Ms.
Gray’s response, we are satisfied that the hearing judge’s determination that Ms. Gray did
not violate MLRPC 8.1(b) is correct. Given the broad nature of the complaint and that Ms.
Gray’s response addressed the substance of the complaint and provided her opinion as to
events concerning the underlying litigation, there is not clear and convincing evidence that
Ms. Gray knowingly failed to respond to a lawful demand for information from Bar
Counsel. Rather, Ms. Gray promptly responded to the substance of the allegations by
providing her view of the underlying litigation and why she believed Mr. Erskine had filed
such a complaint against her in the first instance. As such, we determine that the hearing
judge properly concluded that Ms. Gray did not violate MLRPC 8.1(b).
With respect to Mr. Dyer, we observe that, although Mr. Dyer responded to Bar
Counsel’s letters, in each instance Mr. Dyer failed to respond to the substance of Mr.
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Erskine’s allegations of misconduct. Instead, Mr. Dyer raised, and continued to raise,
issues as to the “legality of Maryland’s confidential attorney grievance proceedings,” and
Bar Counsel’s authority to conduct the investigation. Mr. Dyer questioned the authority of
Bar Counsel to conduct a “confidential” investigation and, yet, refused to accept Bar
Counsel’s willingness to treat his letters as a waiver of confidentiality. Essentially, Mr.
Dyer objected to Bar Counsel’s ability to conduct the investigation in the manner
prescribed by the Maryland Rules and refused to respond at all to the substance of the
complaints.
Mr. Dyer’s failure to respond to the broad accusations of misconduct stated in Mr.
Erskine’s complaint was not as egregious as the misconduct in Bridges. In that case, Bar
Counsel made numerous specific requests for documents, and ultimately issued a
subpoena, but the lawyer refused to provide the requested documents. Bridges, 360 Md.
at 512-13. In this case, Bar Counsel only requested a general response to Mr. Erskine’s
accusations, and did not make specific requests for specific documents or other
information, or file a subpoena. Nevertheless, we cannot say that the request for a response
was merely pro forma. A substantive response from Mr. Dyer would have informed Bar
Counsel whether he was contesting some, or all, of the accusations made by Mr. Erskine,
and thus would have enabled Bar Counsel to focus its investigation.
Therefore, even though Bar Counsel only requested a general response to Mr.
Erskine’s allegations, as opposed to a request for specific documents or other information,
the request was still “a lawful demand for information” pursuant to MLRPC 8.1(b).
Consequently, Mr. Dyer had an obligation to make a substantive response to that request.
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But, instead of doing so, he responded by raising constitutional objections to the
confidential nature of the Commission proceedings. Such objections, much like the
lawyer’s jurisdictional challenges in Bridges, did not adequately respond to Bar Counsel’s
demands. Nothing prevented Mr. Dyer from stating and preserving his constitutional
objection to the Commission’s process while still providing Bar Counsel with his basic
position on the allegations against him—indeed, this is precisely what Ms. Gray did in her
separate response. Accordingly, we conclude that clear and convincing evidence
establishes that Mr. Dyer violated MLRPC 8.1(b).
MLRPC 8.2(a) (Judicial and Legal Officials)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 8.2(a). The Commission contends that Respondents violated MLRPC
8.2(a) by making statements, with reckless disregard as to their truth or falsity, concerning
the qualifications or integrity of various circuit court judges, the clerk of the circuit court,
and the Chief Judge of the Court of Special Appeals. The Commission argues that
Respondents did not have a reasonable or demonstrable basis for making such statements.
We overrule the exception.
MLRPC 8.2(a) provided:
A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office.
Here, the hearing judge was correct in concluding that there is not clear and
convincing evidence that Respondents violated MLRPC 8.2(a). Certainly, Respondents
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were critical of the circuit court and the clerk. For example, in a letter to the Administrative
Judge and circuit court judge upon learning of the January 8, 2014 hearing and
consolidation of the cases, Ms. Gray wrote “to express serious reservation as to whether
[her] clients c[ould] obtain fair treatment and an unbiased decision in the two referendum
related cases,” and stated that the January 8, 2014 hearing “appear[ed] to be little more than
an ex parte meeting between a Judge and counsel representing parties opposing the
referendum.” Also, in the petition for a writ of certiorari filed on April 2, 2014, Ms. Gray
stated that the circuit court, instead of granting the Board’s motion to dismiss, “apparently,
to protect referendum opponents from dismissal, . . . after a ‘secret’ hearing . . . and without
notice to the undersigned, closed three of the four referendum related cases and supposedly
‘amalgamated’ or consolidated all cases under [Case No.] 866.”
Respondents’ statements were based on the circumstances of the underlying
litigation, and their assessment that the consolidation of the cases had resulted in the closure
of their individual cases. As discussed in detail above, Respondents did not receive notice
of the January 8, 2014 hearing despite being entitled to such notice, and Ms. Gray had a
good faith basis to believe that the January 8, 2014 hearing was an ex parte meeting
between the circuit court, the Board, and Normandy. And, after the January 8, 2014
hearing, the circuit court issued an order consolidating the cases, and the docket indicated
that the individually filed cases had been closed. Overall, Respondents’ statements did not
constitute knowingly false statements. Cf. Attorney Grievance Comm’n v. Frost, 437 Md.
245, 260-62 (2014) (holding that lawyer violated MLRPC 8.2(a) where, in an email that
was later disseminated to members of the Bar, the lawyer stated that a particular judge “was
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a lawless judge” and accused the judge of “arranging for deputy sheriffs . . . to illegally
arrest him.” (brackets omitted)).
In this case, Respondents’ assessment that the circuit court was protecting the
referendum opponents is troubling. However, Respondents did not identify a specific
judge to whom they attributed bias or improper conduct, and their assessment was based
on the circuit court having conducted a hearing about the Board’s motion to dismiss and
consolidation of Respondents’ cases without them being present. The comment was
contained in an appellate filing and not disseminated to others. Under the totality of the
circumstances, there is not clear and convincing evidence that Respondents’ statements
about the circuit court violated MLRPC 8.2(a)
Regarding the letter to the editor published in the Baltimore Sun, the letter was
critical of the developers and Mr. Erskine, not of a particular judge or legal officer.18
Regarding the statement in the Baltimore Sun article concerning the Court of Special
Appeals that was attributed to Ms. Gray—“Unreported opinions are the way the appellate
courts do their political dirty work . . . that tells you a lot.”—as the hearing judge found,
there was not clear and convincing evidence of the accuracy of the attribution of the quote
because no one from the Baltimore Sun or any other witness testified as to the accuracy of
the attribution. In other words, there was not clear and convincing evidence that Ms. Gray
18
Any statements made by Respondents critical of Mr. Erskine do not fall within the
purview of MLRPC 8.2(a) because Mr. Erskine was a lawyer in private practice and not a
judge, adjudicatory officer, or public legal officer, or a candidate for election or
appointment to judicial or legal office.
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actually made the quoted statement. Therefore, we overrule the Commission’s exception
on this point.
MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 8.4(c). The Commission contends that Respondents violated MLRPC
8.4(c) by seeking to mislead the appellate courts as to the procedural posture of the case in
the circuit court and by “corrupt[ing] the discovery process” by advising their clients not
to attend depositions in opposition to the circuit court’s order. The Commission
specifically points to the first, third, and fifth petitions for a writ of certiorari in support of
its contention. We overrule the exception.
“It is professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” MLRPC 8.4(c).
Here, the hearing judge was correct in concluding that there was not clear and
convincing evidence that Respondents violated MLRPC 8.4(c). With respect to the
appellate filings, as to the first petitions for a writ of certiorari filed on March 18, 2014, in
connection with Case No. 213 and Case No. 230, Ms. Gray sought direct review by this
Court of the circuit court’s denial of the motion to alter or amend judgment of the closing
of the cases “without any review of [the cases’] merits.” This statement did not misstate
the procedural posture of the cases or otherwise misrepresent that the circuit court had
reviewed the merits of those cases; indeed, the petitions expressly stated that the circuit
court had closed the cases without reviewing the merits. In the third petition for a writ of
certiorari filed on May 6, 2014, Respondents sought review of the circuit court’s order
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denying a motion to quash discovery, and argued that an interlocutory appeal was
appropriate and that, as to the nonparty petition circulators, the order was a final order from
which they had the right to appeal. Technically, the circuit court’s order at issue in the
third petition stayed the motion rather than denied the motion, but Respondents viewed the
stay as a denial. We fail to discern how such a misstatement or misunderstanding
constituted an intentional misrepresentation. And, as to the fifth petition for a writ of
certiorari filed on July 14, 2014, Respondents stated that the circuit court had adjudicated
the claims in the underlying cases in their entirety and that the circuit court had denied the
motion to dismiss for res judicata. Respondents had filed the motion to dismiss based on
res judicata because they believed the circuit court’s May 28, 2014 opinion and order
resolved all of the issues between the parties and that there was nothing left to be resolved.
Thus, the statement in the fifth petition was based on Respondents’ understanding of the
procedural posture of the cases. Even if such an understanding was ultimately mistaken,
we conclude that such a misstatement does not rise to the level of being an intentional
misrepresentation. Indeed, the record does not demonstrate that, throughout the appellate
filings in this Court and the Court of Special Appeals, Respondents made statements with
the intent to engage in dishonesty or misrepresentation. And, we note that neither this
Court nor the Court of Special Appeals imposed sanctions on Respondents for any
appellate filings.
As to the contention that Respondents corrupted the discovery process and that such
action constitutes engaging in dishonesty, fraud, deceit, or misrepresentation, we again
reiterate that Respondents provided the best advice that they could to their clients and the
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nonparty circulators, including the possible sanctions that could occur as a result of not
attending depositions, with the goal of protecting their clients’ and the nonparty circulators’
rights. Ultimately, as explained earlier, the decision of whether or not to attend depositions
was made by the individual clients and nonparty circulators, not by Respondents.
MLRPC 8.4(d) (Conduct that is Prejudicial to the Administration of Justice)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 8.4(d). The Commission contends that Respondents violated MLRPC
8.4(d) by “burden[ing] the judicial process” and argues that “[v]irtually every step they
took caused the courts, their clients and the other parties to expend needless time, resources
and energy.” We overrule the exception.
“It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice[.]” MLRPC 8.4(d). “Generally, a lawyer
violates MLRPC 8.4(d) where the lawyer’s conduct would negatively impact the
perception of the legal profession of a reasonable member of the public.” Chanthunya, 446
Md. at 602 (quoting Shuler, 443 Md. at 505).
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that Respondents violated MLRPC 8.4(d). As the hearing judge
stated, Respondents “provided adequate, but not necessarily perfect, pro bono legal
representation that probably would not have otherwise been available to their clients,” and
they “sought to ensure that the First Amendment rights of their clients and nonparty
circulators were protected from what they perceived to be unnecessary, improper and
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overbroad discovery requests.” Under the circumstances of this case, we fail to discern
that Respondents’ conduct in the underlying litigation violated MLRPC 8.4(d).
MLRPC 8.4(a) (Violating the MLRPC)
The Commission excepts to the hearing judge’s conclusion that Respondents did
not violate MLRPC 8.4(a). The Commission contends that, because Respondents have
violated multiple MLRPC, they have also violated MLRPC 8.4(a). We overrule the
exception with respect to Ms. Gray and sustain the exception with respect to Mr. Dyer.
“It is professional misconduct for a lawyer to[] violate . . . the [MLRPC].” MLRPC
8.4(a).
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that Ms. Gray violated MLRPC 8.4(a) because she did not
violate any MLRPC. We reverse the hearing judge’s conclusion that Mr. Dyer did not
violate MLRPC 8.4(a) because, as discussed above, Mr. Dyer violated MLRPC 8.1(b).
C. Sanction
Bar Counsel recommends that we disbar Respondents. Respondents recommend
that we dismiss all charges against them.
In Attorney Grievance Commission v. Allenbaugh, this Court stated,
This Court sanctions a lawyer not to punish the lawyer, but instead to
protect the public and the public’s confidence in the legal profession. This
Court accomplishes these goals by: (1) deterring other lawyers from
engaging in similar misconduct; and (2) suspending or disbarring a lawyer
who is unfit to continue to practice law.
In determining an appropriate sanction for a lawyer’s misconduct, this
Court considers: (1) the MLRPC that the lawyer violated; (2) the lawyer’s
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mental state; (3) the injury that the lawyer’s misconduct caused or could have
caused; and (4) aggravating factors and/or mitigating factors.
Aggravating factors include: (1) prior attorney discipline; (2) a
dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple
violations of the MLRPC; (5) bad faith obstruction of the attorney discipline
proceeding by intentionally failing to comply with [the Maryland Rules or
orders of Bar Counsel]; (6) submission of false evidence, false statements, or
other deceptive practices during the attorney discipline proceeding; (7) a
refusal to acknowledge the misconduct’s wrongful nature; (8) the victim’s
vulnerability; (9) substantial experience in the practice of law; (10)
indifference to making restitution or rectifying the misconduct’s
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
Mitigating factors include: (1) the absence of prior attorney discipline;
(2) the absence of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith efforts to make restitution or to rectify the
misconduct’s consequences; (5) full and free disclosure to Bar Counsel or a
cooperative attitude toward the attorney discipline proceeding; (6)
inexperience in the practice of law; (7) character or reputation; (8) a physical
disability; (9) a mental disability or chemical dependency, including
alcoholism or drug abuse, where: (a) there is medical evidence that the
lawyer is affected by a chemical dependency or mental disability; (b) the
chemical dependency or mental disability caused the misconduct; (c) the
lawyer’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful
rehabilitation; and (d) the recovery arrested the misconduct, and the
misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the MLRPC; and (14) unlikelihood of
repetition of the misconduct.
450 Md. 250, 277-78 (2016) (brackets omitted) (quoting Shuler, 443 Md. at 506-07).
In Bridges, discussed above, where the lawyer violated MLRPC 8.1(b) when he
responded to Bar Counsel’s letters “by challenging Bar Counsel’s jurisdiction and
requesting further information,” 360 Md. at 513, we determined that a reprimand was the
appropriate sanction. Id. at 517. Similarly, Attorney Grievance Commission v. Butler, this
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Court reprimanded a lawyer who violated MLRPC 8.1(b) by failing to respond promptly
to two lawful requests for information from Bar Counsel. 441 Md. 352, 359-63. We noted
that the lawyer “seemingly ‘stuck his head in the sand,’ apparently out of an irrational fear
of Bar Counsel.” Id. at 361. In concluding that a reprimand was the appropriate sanction,
we explained,
Giving [the lawyer] the benefit of the doubt that he received only the two
December 2012 letters, the hearing judge found that [the lawyer] failed to
respond to Bar Counsel for approximately two months, between December
5, 2012 and February 12, 2013. We neither condone [the lawyer]’s irrational
fear of Bar Counsel nor his delay in responding to Bar Counsel. Failing to
respond in a timely manner to Bar Counsel’s lawful requests for information
is sanctionable conduct.
Id. at 362-63 (footnote omitted).
Furthermore, in Attorney Grievance Commission v. Weiers, this Court reprimanded
a lawyer who violated MLRPC 1.15(a) (Safekeeping Property), MLRPC 8.1(b)
(Disciplinary Matters), and Maryland Rule 16-607 (Commingling of Funds) by
withdrawing the remaining balance of a client retainer a year after having completed the
work and then failing to fully cooperate with Bar Counsel. 440 Md. 292, 312 (2014). In
concluding that a reprimand was the appropriate sanction, we noted that the lawyer’s
misconduct caused no injury to his client, the lawyer had no prior attorney discipline, the
lawyer did not have a dishonest or selfish motive, and the lawyer ultimately responded to
Bar Counsel and participated in the disciplinary proceeding. See id. at 311-12.
Here, Mr. Dyer violated MLRPC 8.1(b) by failing, indeed, refusing, to adequately
respond to Bar Counsel’s lawful demands for information. As to Mr. Dyer’s mental state,
on multiple occasions, Mr. Dyer knowingly declined to respond to the substance of Bar
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Counsel’s requests for information. When faced with Bar Counsel’s willingness to accept
a waiver of confidentiality, Mr. Dyer persisted in his refusal to respond. Mr. Dyer’s
misconduct did not injure any of his clients or third persons, and there is no indication that
Mr. Dyer’s conduct was motivated by personal gain. Upon our independent review, we
note no aggravating or mitigating factors. Overall, we conclude that, consistent with
existing precedent, namely Bridges, Butler, and Weiers, the appropriate sanction for Mr.
Dyer’s misconduct is a reprimand.
As to Ms. Gray, because there is not clear and convincing evidence that she violated
any MLRPC, we shall dismiss the charges against her. In sum, for the above reasons, we
hereby dismiss the charges against Ms. Gray and reprimand Mr. Dyer.19
IT IS SO ORDERED; PETITIONER SHALL PAY
ALL COSTS AS TAXED BY THE CLERK OF
THIS COURT, INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 19-709(d), FOR WHICH SUM JUDGMENT
IS ENTERED IN FAVOR OF ALLEN RAY DYER
AND SUSAN BAKER GRAY AGAINST THE
ATTORNEY GRIEVANCE COMMISSION.
19
Although we reprimand Mr. Dyer, as indicated in the mandate, we do not assess the costs
against him; rather, we assess the costs against the Commission. We note that Bar Counsel
brought numerous charges against Mr. Dyer, and, upon our independent review, we
conclude that Dyer has engaged in misconduct involving only one violation of the MLRPC,
MLRPC 8.1(b), for which he is hereby reprimanded. Only a fraction of costs of the
attorney discipline proceeding can be attributed to the charged violation of MLRPC 8.1(b).
We conclude that, under these circumstances, ordering costs against Mr. Dyer is
inequitable. Even having Mr. Dyer and the Commission split the costs would not be
equitable given that a large portion of the costs are due to alleged violations of the MLRPC
that were not sustained and that the Commission failed to prove are supported by clear and
convincing evidence. And, as determined above, none of the charged violations against
Ms. Gray were proven with clear and convincing evidence. Accordingly, we shall assess
the costs against the Commission.
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