Attorney Grievance Commission of Maryland v. Strathen

• Decision Date: 13 February 1980
• Docket Number: No. 46,46
• Citation: 411 A.2d 102,287 Md. 111
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Alice B. STRATHEN et al.
• Court: Maryland Court of Appeals

Page 111

287 Md. 111

411 A.2d 102

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Alice B. STRATHEN et al.

No. 46.

Court of Appeals of Maryland.

Feb. 13, 1980.

L. Hollingsworth Pittman, Bar Counsel, Annapolis (James A. Frost, Asst. Bar Counsel, Annapolis, on brief), for appellant.

John T. Brooks, Baltimore (Paul A. Gibbons and Fine & Klauber, on brief), for Gerald N. Klauber, Paul A. Gibbons and Fine & Klauber, P. A., Baltimore, part of appellees; no brief filed on behalf of other appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, ^* COLE and DAVIDSON, JJ.

MURPHY, Chief Judge.

This case draws into question the "confidentiality" provisions of Subtitle BV of the Maryland Rules of Practice and Procedure (Discipline and Inactive Status of Attorneys). More particularly, we are required to determine whether Rule BV8 prohibits a judicial tribunal from ordering that testimony taken at an attorney disciplinary hearing before a lawyer Inquiry Panel be produced for use at the trial of a civil malpractice action subsequently filed by the complainant against the attorney in the attorney disciplinary proceeding.

The BV Rules, initially adopted by the Court in 1965, were completely revised in 1975 as a result of a study conducted by a special committee of the Maryland State Bar Association. Rule BV2 now provides for the creation of the Attorney Grievance Commission of Maryland (the Commission), whose members are appointed by the Court. The Commission is vested with authority to "supervise and administer the discipline and inactive status of attorneys in accordance with this subtitle." The Commission appoints attorneys to serve as members of an Inquiry Committee and upon a Review Board (Rule BV3). It also appoints Bar Counsel who functions as "the principal executive officer of the disciplinary system" (Rule BV4). Under Rule BV6, every complaint that an attorney has committed an act of misconduct or that he is incompetent is required to be filed with and investigated by Bar Counsel, who may subsequently refer the complaint to an Inquiry Panel for a hearing. The review procedure is contained in Rule BV7, provision there being made authorizing the Review Board to approve, reject or modify Inquiry Panel recommendations, remand for further proceedings, dismiss the complaint, or reprimand the attorney. Rule BV9 provides that disciplinary charges against an attorney shall be filed in the Court of Appeals at the direction of the Review Board and on behalf of the Commission.

Rule BV8, entitled "Confidentiality," provides in part:

"a. General Rule.

There may be no public proceedings by the Inquiry Committee or the Review Board. Unless otherwise ordered by the (Attorney Grievance) Commission, the record of any complaint, investigation, proceeding of the Inquiry Committee or the Review Board and of any reprimand shall be private and confidential, unless and until charges arising out of the proceeding shall be filed in the Court of Appeals, except as provided in this Rule.

b. Exceptions.

The following exceptions to privacy and confidentiality are hereby established:

(3) A judicial tribunal may request and receive any information that is relevant to the business of the tribunal." ¹

(1)

The facts relevant to a determination of the issue before us disclose that Alice Strathen filed a complaint with Bar Counsel against attorney Gerald Klauber, claiming that he incompetently represented her in a legal matter. A hearing was held on the complaint before an Inquiry Panel, pursuant to Rule BV6, at which time Mrs. Strathen testified. The matter was subsequently considered by the Review Board, which issued a reprimand under Rule BV7.

Mrs. Strathen thereafter filed a civil suit in the Circuit Court for Howard County, asserting a claim of legal malpractice against Klauber and another member of the firm of Fine & Klauber, P. A. Klauber filed a motion for the production by the Attorney Grievance Commission of the transcript of testimony taken before the Inquiry Panel. The motion alleged that Mrs. Strathen's testimony before the Inquiry Panel "is relevant to the pending civil malpractice case and for proper discovery and preparation for said proceeding." Mrs. Strathen opposed Klauber's motion on the ground that production of the transcript "should never be allowed to become a vehicle for discovery in an action for malpractice against an attorney, or in any other type of action." She said that to permit production would violate the confidentiality provisions of Rule BV8, no basis being shown "for violating the strong public policy set forth in the Maryland Rule that the records of the Commission shall be private and confidential."

The Commission was permitted to intervene in the proceedings for the limited purpose of opposing Klauber's motion. It contended that the circuit court had no jurisdiction over the Commission or the attorney disciplinary system because they were creatures of the Court of Appeals of Maryland and subject only to its control and direction. As a consequence, the Commission claimed that the circuit court had no authority to order it to produce the Inquiry Panel transcript. The Commission maintained that to permit the production of confidential Inquiry Panel transcripts would cause the disciplinary system to become a "discovery vehicle" and might encourage the filing of unfounded complaints for discovery purposes alone. The Commission argued that to grant Klauber's motion to produce "would be disastrous to the Disciplinary System and could strip it of the protection that it affords the complainant, as well as the respondent, and might, eventually, strip those filing honest but unfounded complaints of their immunity from libel, slander and defamation suits by wronged attorneys."

Noting the exception to the general rule of privacy and confidentiality of Inquiry Panel proceedings contained in Rule BV8 b 3, the court (Fischer, J.) held that the Circuit Court for Howard County qualified as a "judicial tribunal" under the rule authorized to "request and receive (from the Commission) any information that is relevant to the business of the tribunal." The court said that the issue in the civil malpractice suit was similar to that involved before the Inquiry Panel. Since both matters concerned Klauber's representation of Mrs. Strathen, the court said that Mrs. Strathen's testimony in the disciplinary proceeding "should be useful and possibly essential in cross examining her testimony in the present proceeding." The court held that Mrs. Strathen's testimony before the Inquiry Panel was relevant to the business of the court within the contemplation of Rule BV8 b 3.

The court found no merit in the Commission's suggestion that Mrs. Strathen's testimony before the Inquiry Panel should be kept secret for reasons identical to those which insulate grand jury transcripts from public disclosure. It said that grand jury secrecy is required not for the protection of a person ultimately indicted, but rather for the protection of the grand jury itself, the witnesses before the grand jury, and persons who come under suspicion but are ultimately not indicted. The court applied these principles and said that to keep Mrs. Strathen's testimony secret would not protect the Inquiry Panel, Mrs. Strathen or Klauber. The court stated that Mrs. Strathen's testimony was within the exception to the general grand jury secrecy rule and that her testimony should be disclosed for the purpose of impeachment and cross-examination. The court concluded:

"(T)he principle is that grand jury secrecy and attorney grievance committee secrecy are not absolute, and may be breached under compelling circumstances when the need for the breach is demonstrated with particularity. The Court is thus given the delicate task of balancing the policy which requires secrecy for the proceedings of the Attorney Grievance Committee with the policy which requires that there be full disclosure of all available evidence in order that the ends of justice may be served."

Finding that Klauber demonstrated a need for Mrs. Strathen's testimony to "effectively impeach or cross-examine Mrs. Strathen," the court said:

"Without this prior testimony the defendants would be substantially hampered in their defense and the Court would be ruling upon the matter without all the available evidence."

The court directed that the Commission produce Mrs. Strathen's testimony before the Inquiry Panel. At Mrs. Strathen's request, the court directed the Commission to produce Klauber's Inquiry Panel testimony, as well as the testimony of the other lawyer member of Klauber's firm sued by Mrs. Strathen. This appeal followed.

(2)

Attorney disciplinary proceedings before an Inquiry Panel upon a complaint that an attorney has committed an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for purposes of cross-examination or impeachment if he...