Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
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ETHICAL RAMIFICATIONS OF FAILING TO COMPLY WITH DUE DATES
The Maryland Rules of Procedure establish the framework within which disputes proceed through the court system. We all know that the Rules define the method of exchanging information through discovery and provide set timeframes in which to do so. Violations may lead to exclusion of evidence or the imposition of sanctions, such as paying the other party’s attorney’s fees or costs. Recently, the Court of Appeals issued an opinion that illustrates the possible ethical violations related to an attorney’s failure to comply with a variety of deadlines.
The attorney had filed a timely complaint on behalf of her client for a limited divorce, and opposing counsel promptly served interrogatories and a request for production of documents. After no response was provided for approximately 90 days, opposing counsel filed a motion to compel discovery. The attorney filed a response to the motion nor to the pending discovery requests. Although the scheduling order directed that discovery be complete by August, the attorney did not send any discovery to the opponent until 4 months after discovery closed. In fact, she had not obtained any depositions, despite information from her client that the client’s husband had been misusing and concealing assets. Despite these failures, the parties eventually entered into a settlement of the case. Even then, the attorney failed to submit a proposed order when requested to do so by the court. Eventually, the client filed a complaint with the Attorney Grievance Commission, and the attorney failed to respond to the Commission’s request for a response as well.
Most practitioners know that failing to respond to the Attorney Grievance Commission violates Rule 8.1(b) of the Rules of Professional Conduct. But failing to meet deadlines presents a different perspective on actions that can lead to a disciplinary action. The Court of Appeals found that the failure to issue or respond to discovery requests and the undue delay in submitting a proposed judgment violated Rule 1.1, Competence; Rule 1.3, Diligence; and Rule 3.2, Expediting Litigation. An attorney’s failure to act timely with resulting harm to a client reflects a lack of competence and diligence. Filing the complaint is only one step of pursing a claim in court, and the chronic failure to participate in appropriate discovery perpetuated the failure. Moreover, an attorney must use reasonable efforts to expedite litigation consistent with the interests of the client. At a minimum, this requires responding to discovery requests.
The attorney’s failure to participate in discovery at all led to the imposition of an indefinite suspension. While the opinion does not explain what harm befell the client, because the case was settled, the sanction appears to derive from some additional factors. First, the same attorney had been disciplined in the past for similar violations—a reprimand and a 60-day suspension for those instances had not changed the behavior. Second, the failure to respond to the Attorney Grievance Commission highlighted the attorney’s habit of non-responsiveness. The combination of these mistakes presented the Court with little choice but to suspend the attorney so that the public is protected from this lackadaisical approach to the practice of law.
In recent years, the Court has had more than one opportunity to address an attorney’s diligence and competence in similar circumstances. In Attorney Grievance Commission v. Patterson, 421 Md. 708 (2011), an attorney violated the competence and diligence rules when she “neglected to perform any kind of services or undertake research, [or] to collect documents to support the complaint,” even though she did pursue a claim for injuries her son sustained while he was in the custody of the Department of Juvenile Services. Not surprisingly, the Court also held that the attorney violated Rule 3.2 for failing to expedite litigation, because she neither undertook an effort to serve process upon either of the defendants nor attempted any sort of discovery. Perhaps the most egregious example of these violations appeared in Attorney Grievance Commission v. De La Paz, 418 Md. 534 (2011), where an attorney that was retained by a client and paid in advance completely abandoned the client’s case by neglecting to enter his appearance in the case and failing to keep in touch with the client. Ultimately, the attorney did not appear for the client's hearing, and the client ended up entering into a consent judgment without the aid of counsel.
The Court of Appeals’ most recent decision illustrates the importance of time management and keeping track of the calendar. In addition, the case demonstrates the significant impacts of failing to provide or request discovery beyond those that affect the client’s case—an attorney stands to lose the ability to practice law, not just to lose a particular case. The facts in the case showed a complete absence of adherence to the Rules—not the occasional missed due date that may occur in the course of a busy schedule. The Court’s ruling serves as a useful reminder to all of us to keep track of calendar dates and to work out extensions of time when a date is impossible to meet. See Attorney Grievance Commission v. Melissa Gray, Misc. Docket AG No. 52, Sept. Term, 2012 (filed January 24, 2014).
As the preceding cases have illustrated, the profession demands that attorneys use reasonable efforts to expedite litigation in a timely manner and consistent with the interests of the client, while remaining responsive to the courts and other parties. A failure to meet these requirements can result in severe professional repercussions for the attorney and, more importantly, leads to a lost opportunity for the affected client to seek justice and appropriate remedies for a claim. Requiring attorneys to comply with the Rules relatingto competence, diligence, and expediting litigation serves to maintain an appropriate level of respect for those participating in the judicial system. The famous adage that a “delay in justice is injustice” continues to resonate with the courts and the standards that govern the officers of the court. Deadlines not only ensure administrative and economic efficiency, but also maintain the tenet that redressing injuries requires timeliness to be adequate.
Karen Federman Henry, Committee Member
Jeffrey M. Axelson, Co-Chair, Legal Ethics
Samuel M. Shapiro, Co-Chair, Legal Ethics
Jeffrey M. Axelson
Samuel M. Shapiro
March 20, 2014*
April 24, 2014
May 22, 2014
June 26, 2014
July 24, 2014
*meeting to be held at 4:30PM in the Bar Association CLE Classroom
Meetings will be held at 4:30p.m. at the offices of Axelson, Williamowsky, Bender & Fishman, 401 North Washington St., Suite 550, Rockville, MD, unless otherwise noted.
None Currently Scheduled