Court has Broad Jurisdiction over Attorney Discipline

“Jurisdiction is not a flashy or glamorous area of law. What it lacks in luster, however, it makes up for in fundamental importance in our legal system.” This frank opening statement, penned by Chief Justice Barbera in Attorney Grievance Commission v. Clevenger, illustrates how the merits of a case are often secondary to a proper determination of jurisdiction. The Clevenger decision is significant for legal practitioners in Maryland because it clarifies the extent to which the Maryland Court of Appeals can exercise jurisdiction over an attorney disciplinary proceeding.

Ty Clevenger, a Texas-barred attorney residing in New York, sent a letter to the Attorney Grievance Commission of Maryland alleging that three Maryland attorneys who had worked for former Secretary of State Hillary Clinton had violated the Maryland Attorneys’ Rules of Professional Conduct by destroying evidence, failing to report misconduct, and engaging in conduct involving dishonesty. The Commission declined Clevenger’s request to commence an investigation because Clevenger had no personal knowledge of the allegations, and was not a personally aggrieved client. In response, Clevenger petitioned the Circuit Court for Anne Arundel County for a writ of mandamus, seeking to compel the Commission to conduct an investigation pursuant to Maryland Rule 19-711, which requires the Commission to investigate every complaint that is not “facially frivolous or unfounded.” The circuit court found that it had jurisdiction over the matter and proceeded to grant Clevenger’s motion.

On appeal, the Maryland Court of Appeals considered whether actions taken by the Commission prior to the filing of a Petition for Disciplinary or Remedial Action may fairly be considered a part of attorney disciplinary proceedings, over which the Court of Appeals has exclusive jurisdiction. Clevenger did not dispute the court’s jurisdiction over the whole of attorney disciplinary proceedings, but rather, challenged the premise that the Commission’s initial response to a complaint is necessarily a part of such a proceeding. The Court of appeals likened Clevenger’s claim to one considered in a recent case in which the Court of Appeals held that its exclusive jurisdiction over the regulation of the practice of law “included the ultimate decision whether to admit an applicant and the process by which applicants qualify to be admitted.” In re Application of Kimmer, 392 Md. 251, 260 (Md. Ct. App. 2006). The Court of Appeals reasoned that this case supports its broad grant of jurisdiction over attorney disciplinary proceedings, including the manner in which these proceedings are initiated.

In addition, the Court of Appeals cited a strong statutory basis for its decision to exercise jurisdiction. Considering the origins of the Commission, it noted: “This Court created the Attorney Grievance Commission and, subject to our approval, empowered it to appoint an attorney as Bar Counsel to investigate professional misconduct.” See Md. Rules 19-702, 19-703. It noted further that, pursuant to Cts. & Jud. Proc. § 1-201(a), the power of the Court of Appeals to regulate the practices of other state courts “shall be liberally construed.” In light of its broad rule making authority, the Court of Appeals found that the narrow holding of the circuit court did not comport with the intent of the Maryland General Assembly. The circuit court’s decision was reversed on the grounds that it lacked jurisdiction.