Stay away from the "gray" when submitting exceptions to a trial judge's findings of fact and conclusions of law in an attorney discipline case.

Once a Maryland attorney discipline trial is over, the parties will submit proposed findings of fact and conclusions of law to the trial judge. The trial judge will review these filings and prepare his/her own findings of fact and conclusions of law that will then be submitted to the Court of Appeals. The parties are then allowed to file exceptions to the trial judge's findings of fact and conclusions of law. While it can be difficult for a respondent-attorney to successfully have his/her exceptions sustained by the Court of Appeals, it is not impossible. We have tried numerous cases against Bar Counsel. This blog post provides a quick overview for respondent-attorneys of what to consider when submitting your exceptions with special emphasis on highlighting obvious errors made by the trial judge, either as to the record or the law.

To begin with, a party challenging a trial judge's factual findings "must demonstrate that the finding was clearly erroneous." See AGC v. Post, 379 Md. 60, 74, 839 A.2d 718 (2003). The trial judge's conclusions of law are reviewed de novo. See AGC v. Briscoe, III, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000).

Many respondent-attorneys react poorly to the trial judge's findings of fact and conclusions of law and want to relitigate portions of the trial, including witness testimony. This is generally a mistake. Given the applicable standard, respondent-attorneys should avoid filing exceptions based on their own "competing evidence," or credibility determinations, since the Court of Appeals generally will not "disturb determinations based on a good faith credibility determination." See AGC v. Robbin, 463 Md. 411, 445, 205 A.3d 1034, 1053 (2019). This is particularly true when the exceptions center around testimony from trial witnesses, since the trial judge is in the best position to assess the credibility of witnesses. AGC v. Kimmel, 405 Md. 647, 667, 955 A.2d 269, 281 (2008). This means respondent-attorneys should recognize that exceptions premised on something more than plain errors of fact or law will likely be overruled.

While it can be challenging to have exceptions sustained, there are a number of cases where respondent-attorneys successfully challenged findings of fact and conclusions of law. For instance, in AGC v. Mixter, 441 Md. 416, 109 A.3d 1 (2013), the Court of Appeals sustained four exceptions to the trial judge's findings of fact (even though these ultimately did not save the respondent from a harsh sanction). These exceptions were largely based on plain errors made by the trial judge in terms of the record or the law, including where the trial judge was simply wrong about a particular, allegedly frivolous filing being in a certain file. In AGC v. Robbins, 463 Md. 411, 205 A.3d 1034 (2019), the Court of Appeals sustained an exception that the failure to withdraw timely as an attorney of record could form the basis of a Rule 1.1. violation, and in AGC v. Rand, 411 Md. 83, 981 A.2d 1234 (2009), the Court of Appeals sustained an exception concerning a purported Rule 8.4(d) violation. In AGC v. Robertson, 379 Md. 60, 839 A.2d 718 (2003), the Court of Appeals sustained exceptions to the Rule 1.1, 1.3, and 1.4 charges, primarily because it disagreed with the trial judge's interpretation of the rules given the record. In AGC v. Tayback, 378 Md. 578, 837 A.2d 158 (2003), the Court of Appeals sustained an exception that the trial judge made factual errors about the filing and payment of taxes.

The bottom line is, while the trial judge is often permitted to pick and choose what evidence to believe and what evidence to disbelieve, AGC v. Usiak, 418 Md. 667, 18 A.3d 1 (2011), he or she should not be permitted to simply ignore the entire record or make clear errors as to the evidence and law. Thus, it becomes imperative to focus on black and white issues, as opposed to anything that could be considered gray. Stay away from arguing about witness testimony and instead highlight those areas where the trial judge clearly got facts wrong, as in Tayback, or misinterpreted the law as in Robbins and Robertson. Doing so will increase the likelihood of having your exceptions sustained by the Court of Appeals.

If you have received a letter from Bar Counsel or a client has filed a complaint with the Attorney Grievance Commission, or you are currently defending a Petition for Disciplinary Charges, Goodell DeVries can help. Contact the author, George Mahaffey, for assistance in addressing your concerns.

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