Should There Be Limits on Bar Investigations of Candidates for Judicial Office, During the Campaign?

This Legal professional Grievance Fee of Maryland continuing issues the alleged skilled misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It additionally issues an overlay of things that considerably complicates our evaluate of Ms. Pierre’s alleged violations of the Maryland Attorneys’ Guidelines of Skilled Misconduct (“MARPC”). That overlay arises from the circumstances wherein the investigation of Ms. Pierre started and the absence of provisions in our guidelines to information investigations arising in such circumstances.

The core allegations in opposition to Ms. Pierre arose from accusations made in an August 2020 marketing campaign e-mail. The e-mail was despatched by the marketing campaign supervisor for a slate of 4 sitting judges in opposition to whom Ms. Pierre was working for a seat on the Circuit Courtroom for Montgomery County. Despatched simply over two months earlier than election day, the e-mail was directed to Montgomery County attorneys and recognized an “Pressing Want for Motion.” The e-mail alleged, amongst different issues, that Ms. Pierre’s marketing campaign had made false statements concerning the sitting judges, that Ms. Pierre had misstated her skilled {qualifications}, and that she had engaged in unprofessional conduct in reference to a lawsuit greater than 20 years earlier.

Among the many recipients of the marketing campaign e-mail was then-Bar Counsel. Within the absence of any guidelines or procedures governing the investigation of allegations of misconduct arising within the midst of a judicial election, Bar Counsel instantly opened an investigation, knowledgeable the sitting judges’ marketing campaign supervisor of the existence of the investigation, and sought extra data. Quickly thereafter, lower than two months earlier than the election, Bar Counsel despatched Ms. Pierre a letter summarizing lots of the allegations leveled by her rivals’ marketing campaign and insisted that Ms. Pierre reply to them in writing, in lots of circumstances by explaining and justifying statements made by her or her marketing campaign, inside two weeks….

After finishing its investigation, the Fee, appearing by means of Bar Counsel, filed a petition for disciplinary or remedial motion wherein it alleged that Ms. Pierre violated the MARPC and the New York Code of Skilled Accountability Disciplinary Guidelines (“NYDR”) on account of her: (1) deceptive or false statements concerning the sitting judges in her 2020 marketing campaign supplies; (2) willful misrepresentations about her background on her 1999 Software for Admission to the Bar of New York (“New York Bar Software”); (3) willful misrepresentations about her background and profession expertise on her functions for numerous judgeships in Montgomery County between 2012 and 2017; and (4) false statements underneath oath and failure to well timed reply to Bar Counsel’s investigatory calls for….

The assigned listening to decide discovered by clear and convincing proof that Ms. Pierre had violated every MARPC and NYDR alleged, though the listening to decide rejected a number of of the grounds on which Bar Counsel had relied for these violations…. Bar Counsel really helpful the sanction of disbarment, whereas Ms. Pierre really helpful imposing no sanction. Given the overlay of circumstances talked about above, and with out aspiring to diminish the seriousness of the misconduct wherein Ms. Pierre engaged, we are going to problem a reprimand….

We … start by discussing 4 concerns arising from that context which can be necessary to our evaluation.

First, any investigation right into a candidate for elected workplace that’s undertaken at a delicate level within the electoral course of presents dangers that needs to be averted or minimized to the extent potential. Few issues in our type of authorities rise to the extent of significance of the State’s curiosity in selling religion within the integrity of the electoral course of by which residents select their elected officers. Any notion {that a} authorities actor has tried to exert undue affect on the result of an election dangers undermining that religion. Authorities investigations of candidates for workplace through the warmth of a marketing campaign—particularly, however not solely, in the event that they turn out to be a matter of public information earlier than the election—danger both: (1) an look of an try to exert affect on the election; or (2) really affecting the result, whether or not meant or not.

To keep away from the doubtless corrosive or in any other case unintended results that would accompany the pursuit of an investigation through the warmth of an election, future investigations by Bar Counsel into alleged misconduct by a candidate in a judicial election ought to usually be postponed till after the election until: (1) doing so would put a person or the general public in danger from previous or potential future misconduct that’s inside the purview of the Fee and that could possibly be averted by immediate investigation; or (2) immediate investigation is critical to protect proof. In both case, Bar Counsel ought to usually confine pre-election actions to what’s essential to fulfill the exigency. Though our personal guidelines don’t but include such steerage,⁵ different investigative businesses have acknowledged in rule or follow that such investigations needs to be delayed, postponed, or not less than not disclosed through the run-up to an election.

The sensitivity of the timing of such investigations is acknowledged in memoranda distributed to staff of america Division of Justice. In a 2022 memorandum, Legal professional Normal Merrick Garland said that each one Division staff “should be notably delicate to safeguarding the Division’s repute for equity, neutrality, and nonpartisanship.” For that cause, the Legal professional Normal directed that any worker going through “a difficulty, or the looks of a difficulty, concerning the timing of statements, investigative steps, expenses, or different actions close to the time of a major or common election [should] contact the Public Integrity Part of the Felony Division … for additional steerage.” In February 2020, then-Legal professional Normal William Barr equally warned of the necessity to “be delicate to safeguarding the Division’s repute for equity, neutrality, and nonpartisanship,” and imposed particular necessities for the opening of any investigation right into a candidate for federal workplace. His memorandum saying the necessities acknowledged that

[i]n sure circumstances, the existence of a federal legal or counterintelligence investigation, if it turns into recognized to the general public, could have unintended results on our elections. For that reason, the Division has lengthy acknowledged that it should train explicit care concerning delicate investigations and prosecutions that relate to political candidates, campaigns, and different politically delicate people and organizations—particularly in an election 12 months.

Second, election-related speech is on the very coronary heart of the First Modification to america Structure and Article 40 of the Maryland Declaration of Rights. This Courtroom has acknowledged that “‘speech concerning the {qualifications} of candidates for public workplace,’ together with judicial candidates, is ‘on the core of our First Modification freedoms.'” Such political speech is entitled to “the best degree of First Modification safety.”

Third, speech that’s vital of judges can be topic to sturdy free speech safety. Because of this, for such speech to be actionable as a violation of the MARPC, it should meet the excessive commonplace set forth by america Supreme Courtroom in New York Occasions v. Sullivan (1964), which is to say that it should be false and will need to have been made both understanding it to be false or with reckless disregard for its fact or falsity.

Fourth, given Bar Counsel’s shut affiliation with the Judiciary, particular concerns apply to investigations by Bar Counsel into the conduct of a candidate in a judicial election through the pendency of the election. This Courtroom is in the end answerable for the regulation of the follow of legislation within the State. In furtherance of that accountability, we, by Rule, have established the Legal professional Grievance Fee and the place of Bar Counsel. The Fee, established by Rule 19-702, is comprised of 12 members, together with 9 attorneys and three non-attorneys, all appointed by this Courtroom for three-year phrases and topic to removing by this Courtroom at any time. Amongst different duties, the Fee appoints Bar Counsel, topic to approval from this Courtroom; supervises Bar Counsel’s actions; authorizes Bar Counsel’s employment of attorneys, investigators, and different employees; approves or rejects Bar Counsel’s suggestions regarding actions to take after investigating complaints, together with dismissal, reprimand, or the submitting of a petition for disciplinary or remedial motion; and prepares an annual funds for the disciplinary fund topic to this Courtroom’s approval….

The roles and actions of the Fee and Bar Counsel with respect to all elements of lawyer self-discipline investigations, proceedings, and inclinations are additional established by Guidelines promulgated by this Courtroom. Though the Fee and Bar Counsel, by design, perform independently of this Courtroom, they play a vital function in finishing up our accountability to manage the authorized career in Maryland by, as set forth within the Fee’s mission assertion, “defending the general public and sustaining the integrity of the authorized career.” The Fee’s and Bar Counsel’s shut connection to the Judiciary advise warning in taking actions in opposition to a candidate who’s difficult sitting judges to keep away from the chance that members of the general public could understand such actions as motivated by a need to assist the sitting judges.

{Following the issuance of this opinion, we are going to consult with the Standing Committee on the Guidelines of Observe and Process consideration of adopting a rule establishing procedures for addressing alleged misconduct violations that come up through the pendency of election campaigns usually and campaigns for judicial workplaces particularly.}