Hillary Clinton’s e-mails, attorney discipline, and the original and exclusive jurisdiction of the Court of Appeals – Attorney Grievance Commission v. Clevenger

By Brad McCullough

Hillary Clinton’s use of a private e-mail server to conduct business as Secretary of State has been the primary focus, or at least an aspect, of various investigations, including ones by the FBI, the State Department’s Office of the Inspector General, the House Select Committee on Benghazi, and the House Oversight Committee. Add the Maryland Attorney Grievance Commission, Bar Counsel, and Court of Appeals to the list of authorities who have now touched some aspect of that controversy. After a Texas lawyer persuaded a circuit court judge to order the Commission and Bar Counsel to investigate three lawyers for actions they allegedly took while representing Clinton, the Court of Appeals held that the circuit court lacked jurisdiction over the Texas lawyer’s request.

Ty Clevenger is a Texas-barred lawyer with a history of lodging complaints against lawyers and public officials who he believes have acted unethically or criminally. Sensing misconduct by three Maryland-barred attorneys, he filed a complaint with the Maryland Attorney Grievance Commission. “Specifically, Mr. Clevenger alleged that the attorneys violated Rules 19-308.3, 19-303.4(a), and 19-308.4(c) by destroying evidence related to ongoing federal investigations, failing to report the misconduct of other attorneys, and engaging in conduct involving dishonesty.” Attorney Grievance Comm’n v. Clevenger, No. 64, Sept. Term, 2017, slip op. at 2 (Md. June 21, 2018). Bar Counsel denied the request to open an investigation, noting that Clevenger had “no personal knowledge of the allegations presented in [his] correspondence,” nor was he “a personally aggrieved client or party possessing material information that would assist [Bar Counsel] in reviewing such allegations.” Id. at 3. And as “the records of an investigation by Bar Counsel, including the existence and content of any complaint or response, are confidential,” Bar Counsel was “unable to provide [Clevenger] with additional information.”  Id. (citing Md. Rule 19-707(b)).

Having been rebuffed by Bar Counsel, Clevenger turned to the Circuit Court for Anne Arundel County, where he filed a petition seeking a writ of mandamus. He asked that court to “compel Bar Counsel to conduct an investigation, arguing that then-effective Maryland Rule 19-711 required Bar Counsel to investigate every complaint that was not facially frivolous or unfounded.” Id. Arguing that the Court of Appeals had original and complete jurisdiction, “the Commission moved to dismiss the Petition for lack of jurisdiction.” Id.[1] The circuit court denied the motion, “concluding that it had jurisdiction over the subject matter of the Petition because it was not yet an attorney disciplinary matter and, thus, was not within the original and exclusive jurisdiction of the Court of Appeals.” Id. at 4. The court then “ruled that Rule 19-711 required Bar Counsel to investigate every complaint that was not frivolous, and Bar Counsel had made no claim or showing that Mr. Clevenger’s complaint was frivolous.” Id. Hence the circuit court granted the petition and ordered the Commission to investigate Clevenger’s allegations. The Commission appealed to both the Court of Special Appeals and the Court of Appeals and also petitioned the Court of Appeals for a writ of certiorari. Clevenger filed a cross-petition. The Court of Appeals granted the Commission’s petition, denied Clevenger’s cross-petition, and granted the Commission’s motion to stay the circuit court’s order. Id.

The parties agreed that the Court of Appeals enjoys original and exclusive jurisdiction over attorney disciplinary proceedings, but Clevenger maintained “that because Bar Counsel declined to conduct an investigation, no attorney disciplinary proceeding ever commenced.” Id. at 7. Moreover, Clevenger argued that “even if Bar Counsel had investigated his complaint, that action still would not constitute an attorney disciplinary proceeding.” Id. According to Clevenger, “an attorney disciplinary proceeding only commences upon Bar Counsel’s filing of a Petition for Disciplinary or Remedial Action in the Court of Appeals under Maryland Rule 19-721.” Id. He questioned “the premise that Bar Counsel’s initial response to a complaint (whether it involves an investigation or not) is necessarily a part of attorney disciplinary proceedings.” Id. at 8.

In an unanimous ruling authored by Chief Judge Mary Ellen Barbera, the Court rejected that narrow view of its original and exclusive jurisdiction, citing its decisions in Attorney Grievance Comm’n v. Pak, 400 Md. 567 (2007) and In re Application of Kimmer, 392 Md. 251 (2006) as examples of the plenary power it holds over matters pertaining to attorney discipline. In Pak, the Court rejected an argument “that the Court of Appeals was divested of jurisdiction in an attorney grievance case if a Peer Review Panel – formed under then-effective Rule 16-742 (now Rule 19-719) – recommended to the Commission that no action should be taken against the attorney.” Slip op. at 8 (citing Pak, 400 Md. at 576). The Court explained that its jurisdiction extended “over all attorney disciplinary matters arising from the conduct of a member of the Maryland State Bar.” Id. (quoting Pak, 400 Md. at 599-600) (internal quotations marks omitted) (citations omitted).

In Kimmer, bar applicant Kimmer obtained a temporary restraining order from a circuit court, which allowed him to take the bar examination using an accommodation that had been denied by the State Board of Law Examiners. After the examination, the Board stated that it would not recommend Kimmer’s admission to the bar until the merits of his claim were resolved, i.e. until it was determined that he was legally entitled to the accommodation that had been given him. Kimmer again sought relief from the circuit court, asking that the TRO be made permanent and also asking for a ruling that he be admitted to the bar. The Board opposed that request, but before the circuit court ruled, the Board sent the Court of Appeals the list of applicants who were successful on the bar examination. Kimmer’s name was on that list, and the Board excepted to his admission. The Board also argued that Kimmer’s qualification for admission rested squarely within the jurisdiction of the Court of Appeals. The Court stayed the circuit court proceedings, and ultimately concluded that the circuit court “simply had no jurisdiction over any aspect of the applicant’s bar admission, including the circumstances surrounding his bar examination.” Id. at 10 (internal quotation marks omitted) (quoting Kimmer, 392 Md. at 269). The Court sustained the Board’s exception to Kimmer’s application. Id. (citing Kimmer, 392 Md. at 275).

In Clevenger, the Court concluded that the rationale in Kimmer was fully applicable to the issue before it. In Kimmer, the Court held that its exclusive jurisdiction over the practice of law included, not only the decision whether to admit an applicant to the bar, but also the process by which are admitted. Likewise, the Court’s jurisdiction over disciplinary proceedings includes, not just the ultimate decision whether to discipline an attorney, but also “the manner in which those proceedings are initiated.” Id. at 11. The Court expressly rejected any idea that attorney disciplinary proceedings do not begin until Bar Counsel files a petition. Although most cases decided by the Court have involved “the ultimate issues of attorney misconduct and sanctions,” matters such as “how and whether Bar Counsel acts when a complaint is received” also arise from the conduct of a member of the Maryland bar and thus fall within the exclusive purview of the Court of Appeals. Id. at 11 (citing Pak, 400 Md. at 599-600).

While Bar Counsel and the circuit courts play roles in administering disciplinary matters, those roles are prescribed by Rules enacted by the Court of Appeals in accordance with the power given it by Md. Const., art. IV, §18(a). The General Assembly has acknowledged the Court’s broad authority, the Attorney General has rendered an opinion recognizing that authority, and the Court has exercised that authority by creating the Attorney Grievance Commission and giving it the power, subject to the Court’s approval, to appoint Bar Counsel. Id. at 11-12 (citing Md. Code Ann., Cts. & Jud. Proc. §1-201(a); 82 Md. Op. Att’y Gen. 23, 26-27 (1977); Md. Rules 19-702, 19-703). The Court explained: “Because this Court, through Bar Counsel, has the exclusive power to conduct an investigation, a question about whether an investigation was properly conducted or declined under the relevant Rule – which we created and administer – is one that only this Court may consider.” Id. at 12. Consequently, “the circuit court lacked jurisdiction to consider, let alone to grant, the petition for writ of mandamus.” Id. at 13.

In Clevenger, the Court made clear that its power over the practice of law and the decision to discipline Maryland lawyers is far-reaching and all-encompassing and the Court will carefully safeguard that power. Any effort to circumvent the Court’s original and exclusive jurisdiction will likely fail, just as Clevenger’s effort failed. The Court of Appeals, and only the Court of Appeals, holds the power to decide how and whether to discipline members of the Maryland Bar.

 

[1] The Court of Appeals referred to the Attorney Grievance Commission and Bar Counsel collectively as “the Commission.” Id. at 1.

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