We defend various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. In litigating and trying cases against Bar Counsel in Maryland, we have frequently been faced with the issue of Bar Counsel failing to meet its burden of proof at trial. The question is whether there is a viable mechanism to address this failure with the trial court. Bar Counsel's position is that all attempts to dismiss any portion of a proceeding are barred by Maryland Rule 19-725(c), but that does not account for the ability of the trial judge to rule pursuant to Maryland Rule 19-727(d). This post addresses why it may make sense for a respondent-attorney to request that the trial court conclude the trial and issue findings of fact and conclusions of law when Bar Counsel has failed to meet its burden of proof.
You are a respondent-attorney in trial and Bar Counsel has failed to meet its burden of proof during its case-in-chief. You want to move to have the matter dismissed, but you are aware that Bar Counsel will likely cite to Maryland Rule 19-725(c) and argue the trial court cannot dispose of any portion of the case. What do you do?
Rules 19-725(c) and 19-727(d)
To begin with, it is highly likely that the trial court will agree that it cannot grant a motion to dismiss or any type of specific dismissal request under Maryland Rule 19-725(c). The trial court will likely assert that only the Court of Appeals can specifically dismiss charges in a Petition for Disciplinary Relief or Remedial Action. We have seen this happen on multiple occasions.
That said, there is nothing in the rules, particularly in light of Maryland Rule 19-727(d), which would preclude the trial court from concluding the hearing at the close of Bar Counsel's case and then entering findings of fact and conclusions of law which detail the reasons why Bar Counsel failed to prove the charges at issue by clear and convincing evidence. This approach seems to not only be in line with the rules, but principles of fairness, given that there is no good reason why a respondent-attorney should be forced to defend himself or herself against charges that have no merit and that have not been proven. Until such time as the Maryland Rules are amended to specifically permit trial courts to dismiss charges that have not been proven, if you are a respondent-attorney involved in an attorney discipline trial, there is little downside to asking the trial court to enter findings of fact and conclusions of law at the close of Bar Counsel's case.