Why the Public Should Have No Confidence in the MD Attorney Grievance Comm.

10a-VACANCY-Court-of-Appeals-MD-MF10Sometimes, ONE WORD has the ability to undermine or completely destroy confidence in all the rest of them.

The Maryland Attorney Grievance Commission. Created by the Court of Appeals in 1975, they claim on their website to be “..dedicated to protecting the public and maintaining the integrity of the legal profession.” One would think that “the public” is the most important part of any equation that involves it. But unlike other Maryland government entities, all operations and activities of the Attorney Grievance Commission and its Office of Bar Counsel appear to be fully-funded by the very attorneys they are supposed to protect the public from. Awkward triangle, to say the least.

Back to the public, who is supposed to be the most important part of the equation.

The Maryland Rules are the ONLY thing that anyone should be relying upon when dealing with the Attorney Grievance Commission or its Office of Bar Counsel. I will explain why I wrote that in a moment. Here are some of the important Rules that pertain to the early part of the complaint process:

*19-702(h) The Commission has the powers and duties to: (1) recommend to the Court of Appeals the adoption of procedural and administrative guidelines and policies consistent with these Rules.

*19-711. Bar Counsel staff is supposed to review complaints that they receive and open a file on complaints that meet their internal charging priorities. The assumption is being made that they have such priorities, since most prosecutors have them and Bar Counsel historically only pursues no more than 20% of the complaints that are made to them in most fiscal years. As an aside, The numbers clearly show that 80% of most complaints that are made to them are summarily disposed of. The Rule actually reads that the way that a file would NOT get opened is if the complaint is without merit or doesn’t allege facts that they believe demonstrate misconduct. But if a file is opened, here’s what is supposed to happen pursuant to the Rule:

“acknowledge receipt of the complaint and explain in writing to the complainant the procedures for investigating and processing the complaint.”

One would think that an entity whose purpose is to protect the public would actually let the public know about the ways in which it investigates and processes complaints. The Rule does indicate that they are supposed to tell the complainant what they are. And the other Rule indicates that the Commission had a duty to adopt guidelines and policies, which they apparently did. But what’s a guideline really?

Their 4.9 Guideline reads, “Bar Counsel shall give special attention to all cases which are not being processed with reasonable dispatch..”.

Guideline 3.23 reads, “Policy decisions..methods of processing Complaints and office procedures shall be established by the Commission and implemented by Bar Counsel and the Executive Secretary under the supervision of designated members of the Commission.”

Guideline 4.3 reads that “Bar Counsel shall prepare and maintain an up-to-date office manual, which shall contain, in addition to material selected in the discretion of Bar Counsel, all policies adopted from time to time by the Commission, all forms used by Bar Counsel… as well as specific procedures for processing complaints.”

As written in a previous blog post, the request for the disclosure of BOTH of these instances (Commission and Bar Counsel) of policies and procedures was made through the Public Information Act of the person who is the PIA designee for both the AGC and the Office of Bar Counsel. The designee, Marianne Lee, has confirmed without question that neither the AGC nor the Office of Bar Counsel have any policies or procedures articulated in 3.23 or 4.3. Repeatedly, Ms Lee suggested that the Maryland Rules be consulted for guidance.

But the Rule clearly says that they should have them. Policies pertaining to the investigating and processing of complaints, that is. And, they’re supposed to tell EVERY complainant about them.

In the most recent FY2016 annual report available on the AGC’s website (for some reason, the FY 2017 one still isn’t available) we find: “This year saw a decline in the number of complaints made to the Commission from 2147 in FY2015 to 1815 in FY2016”. (FYI, 1835 is in the chart in the report, but there “complaint” is comprised of overdraft notices, resignations, unauthorized practice of law and complaints and labeled “new cases received”). That means that some number, 1815 or maybe 1835 people, were supposed to receive acknowledgement of their complaint and the policies concerning complaints. FOUR complaints haven’t received any information about the investigation and processing of the complaints. TWO complaints haven’t received acknowledgment of their receipt, despite the fact that they were received THREE MONTHS ago with no visible action done as of yet.

There just aren’t any consistent policies or procedures for the investigation or processing of complaints.

That’s the only way that we can cut through the circular argument being made by Marianne Lee on behalf of the Attorney Grievance Commision and the Office of Bar Counsel. Her exact words, “Bar Counsel has again advised that presently there are no written policies and procedures for the processing of complaints beyond those enumerated in the Maryland Rules and the Administrative and Procedural Guidelines.” Both indicate that written policies were to be created. Acknowledged originally by the creation of the Guidelines in 2001, it therefore seems that 16 have gone by with no written policies.

Request was made for the disclosure of the “designated members of the Commission” who were supposed to see to it that policies were created and then implemented by Bar Counsel. The request was made for the disclosure of those designed members who held that role from 2012 to the present.

In her response, Ms. Lee simply printed the complete list of the Commission members and Office of Bar Counsel staff that exist as of July 31, 2017. Um, Marianne… you’re not helping!

Providing the response as she has implies one of two things. First, that there are no designated members, and that each and every person on the Commission has the responsibility equally. That would mean that each one of them is complicit in the failure to create policy and all that is supposed to flow from them. Alternatively, perhaps Ms. Lee DID provide the names within the full list but is declining to name them as requested.

Not really sure which one is worse.

It has crossed more peoples’ minds that policies, procedures and an “office manual” does actually exist, and that the AGC is purposefully defying the law (Public Information Act) by not providing them. The alternative theory is that the AGC is a rogue agency that operates as it wants to, with zero accountability to anyone. They’ve got to know that they had that coming! That’s how rogue agencies are defined.

The perspective of this blog is primarily that of a person who is currently or has previously gone through an experience or encounter with a Maryland governmental entity. In this instance, the perspective is from a member of the public that made complaints about attorneys. Most people bother to make complaints because they are upset enough to do it, and because they assume that someone with the power will do what’s necessary to afford their complaint EVERY BIT of scrutiny and care that the entity claims on its masthead to utilize. We increasingly see what has had to happen when police policing themselves regarding misconduct complaints is revealed to be ineffective. Baltimore Police forward all misconduct complaints to a Civilian Review Board now. (story HERE)

In Philadelphia, the police complaints will now be made available online as of November 2017. GREAT transparency move!

This isn’t to suggest that the Maryland AGC do what it says at almost every opportunity it will never do: bypass their many secrecy provisions. But it shouldn’t be a secret to the complainant how a government entity does the work that it claims to do on their behalf, unless they serve another master. Similarly, when it’s made to appear that largely the same number of actual complaints are made each year, with correlations made that it is proof that things are working as they should be (instead of the possibility that it’s only being made to appear that way), you begin to understand that the figures may not mean anything at all. As the Huffington Post article referenced below on police complaints suggests, it then becomes necessary to look at the complaint policy for clarification.

Unless you don’t have one, which answers nothing while simultaneously answering much.

I’m sure that I’m giving the AGC more latitude than they are giving to my complaints (which I suspect are never going to see the light of day unless I do it). In this relationship, it has become abundantly clear that I’m more into them than they are into me. Now, anyone stumbling upon this blog who was thinking about buying a ticket to the Attorney Grievance Commission-Complainant dance can just save their money, time and effort. The advertising doesn’t match the reality.

Oh, almost forgot..that ONE WORD that I mentioned at the start. The Black’s Law definition of “Guideline”: a practice that provides leeway in its interpretation.

Commission Members: Just take the guidelines down off the website if we can’t rely upon them to be accurate or binding in any material way. Just say that you do what you feel like doing (or not), and let that be the end of it. We would at least respect your honesty.

Huffington Post article mentioned herein: “Here’s what happens when you complain to cops about cops”


Via Testing Maryland



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