George S. Mahaffey
One especially tricky ethics trap involves inadvertently letting the cat out of the bag. Documents received during an initial inquiry by Bar Counsel that proves not to be an attorney’s fault can give rise to a subsequent investigation. Here is how that can happen and what you can do to avoid it.
Imagine you are a Maryland attorney notified by your bank of an overdraft on your escrow account. The bank notifies Bar Counsel of the overdraft and Bar Counsel opens an inquiry. The attorney provides an initial response to Bar Counsel. Imagine further that the bank (not the attorney) was the cause of the overdraft, but that in responding to Bar Counsel’s inquiry, the attorney provides documents that suggest potential rule violations. Should Bar Counsel be permitted to investigate further? Or does the fact that the initial inquiry was without merit end the inquiry? In AGC v. Milton, 467, Md. 433, 225 A.2d 415 (2020), the Court of Appeals ruled that even if the initial inquiry is shown not to be the attorney’s fault, documents received during that inquiry suggesting independent wrongdoing can give rise to further or expanded investigations.
The Facts in Milton
In Milton, the respondent-attorney submitted a response to Bar Counsel's initial inquiry about an overdraft and correctly pointed out that the overdraft was caused by the bank, not him. But in providing his response, the attorney provided documents to Bar Counsel showing he improperly made a number of cash withdrawals from his escrow account. Id. at 439, 225 A.2d at 419. Bar Counsel sought to expand the initial inquiry into an investigation of the withdrawals. The respondent-attorney refused to cooperate in the expanded investigation, arguing that once it became clear he was not the cause of the initial overdraft — the basis of the initial inquiry — Bar Counsel’s investigation should have ended. Id. at 450, 225 A.2d at 425.
The Court of Appeals disagreed with the respondent-attorney and found that even if an initial inquiry by Bar Counsel is shown to have not been the attorney's fault, other information of possible independent wrongdoing obtained during the initial inquiry can give rise to another investigation. Id. at 450, 225 A.2d at 425-26.
The Milton decision demonstrates why it is important to (1) seek counsel if you are the subject of an inquiry by Bar Counsel and (2) the reasons why any response to Bar Counsel needs to be specific to the scope of the inquiry. Providing additional documents that may not be specifically responsive to the initial inquiry, or failing to prepare a proper response to Bar Counsel’s initial inquiry, can open the door to a wider investigation. Finally, refusing to cooperate in any further investigation, or seeking to obstruct the investigation — even if you believe it has no merit — will only make a bad situation worse. Indeed, the respondent-attorney in Milton filed two motions to quash Bar Counsel’s investigation only to have the Court of Appeals find them frivolous.
Goodell DeVries defends 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. If you have questions about the above or are a Maryland lawyer facing discipline, please contact the author, George Mahaffey.
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