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Free Speech

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


An excerpt from Attorney Grievance Comm'n v. Pierre, decided Wednesday by the Maryland Supreme Court, in an opinion by Chief Justice Fader:

This Attorney Grievance Commission of Maryland proceeding concerns the alleged professional misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It also concerns an overlay of factors that significantly complicates our review of Ms. Pierre's alleged violations of the Maryland Attorneys' Rules of Professional Misconduct ("MARPC"). That overlay arises from the circumstances in which the investigation of Ms. Pierre began and the absence of provisions in our rules to guide investigations arising in such circumstances.

The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email. The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an "Urgent Need for Action." The email alleged, among other things, that Ms. Pierre's campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier.

Among the recipients of the campaign email was then-Bar Counsel. In the absence of any rules or procedures governing the investigation of allegations of misconduct arising in the midst of a judicial election, Bar Counsel immediately opened an investigation, informed the sitting judges' campaign manager of the existence of the investigation, and sought additional information. Soon thereafter, less than two months before the election, Bar Counsel sent Ms. Pierre a letter summarizing many of the allegations leveled by her rivals' campaign and insisted that Ms. Pierre respond to them in writing, in many cases by explaining and justifying statements made by her or her campaign, within two weeks….

After completing its investigation, the Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action in which it alleged that Ms. Pierre violated the MARPC and the New York Code of Professional Responsibility Disciplinary Rules ("NYDR") as a result of her: (1) misleading or false statements about the sitting judges in her 2020 campaign materials; (2) willful misrepresentations about her background on her 1999 Application for Admission to the Bar of New York ("New York Bar Application"); (3) willful misrepresentations about her background and career experience on her applications for various judgeships in Montgomery County between 2012 and 2017; and (4) false statements under oath and failure to timely respond to Bar Counsel's investigatory demands….

The assigned hearing judge found by clear and convincing evidence that Ms. Pierre had violated each MARPC and NYDR alleged, although the hearing judge rejected several of the grounds on which Bar Counsel had relied for those violations…. Bar Counsel recommended the sanction of disbarment, while Ms. Pierre recommended imposing no sanction. Given the overlay of circumstances mentioned above, and without intending to diminish the seriousness of the misconduct in which Ms. Pierre engaged, we will issue a reprimand….

We … begin by discussing four considerations arising from that context that are important to our analysis.

First, any investigation into a candidate for elected office that is undertaken at a sensitive point in the electoral process presents risks that should be avoided or minimized to the extent possible. Few things in our form of government rise to the level of importance of the State's interest in promoting faith in the integrity of the electoral process by which citizens choose their elected officials. Any perception that a government actor has attempted to exert undue influence on the outcome of an election risks undermining that faith. Government investigations of candidates for office during the heat of a campaign—especially, but not only, if they become a matter of public knowledge before the election—risk either: (1) an appearance of an attempt to exert influence on the election; or (2) actually affecting the outcome, whether intended or not.

To avoid the potentially corrosive or otherwise unintended effects that could accompany the pursuit of an investigation during the heat of an election, future investigations by Bar Counsel into alleged misconduct by a candidate in a judicial election should generally be postponed until after the election unless: (1) doing so would put an individual or the public at risk from past or potential future misconduct that is within the purview of the Commission and that could be avoided by prompt investigation; or (2) prompt investigation is necessary to preserve evidence. In either case, Bar Counsel should generally confine pre-election activities to what is necessary to satisfy the exigency. Although our own rules do not yet contain such guidance,5 other investigative agencies have recognized in rule or practice that such investigations should be delayed, postponed, or at least not disclosed during the run-up to an election.

The sensitivity of the timing of such investigations is recognized in memoranda distributed to employees of the United States Department of Justice. In a 2022 memorandum, Attorney General Merrick Garland stated that all Department employees "must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship." For that reason, the Attorney General directed that any employee facing "an issue, or the appearance of an issue, regarding the timing of statements, investigative steps, charges, or other actions near the time of a primary or general election [should] contact the Public Integrity Section of the Criminal Division … for further guidance." In February 2020, then-Attorney General William Barr similarly warned of the need to "be sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship," and imposed special requirements for the opening of any investigation into a candidate for federal office. His memorandum announcing the requirements recognized that

[i]n certain cases, the existence of a federal criminal or counterintelligence investigation, if it becomes known to the public, may have unintended effects on our elections. For this reason, the Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations—especially in an election year.

Second, election-related speech is at the very heart of the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. This Court has acknowledged that "'speech about the qualifications of candidates for public office,' including judicial candidates, is 'at the core of our First Amendment freedoms.'" Such political speech is entitled to "the highest level of First Amendment protection."

Third, speech that is critical of judges is also subject to robust free speech protection. As a result, for such speech to be actionable as a violation of the MARPC, it must meet the high standard set forth by the United States Supreme Court in New York Times v. Sullivan (1964), which is to say that it must be false and must have been made either knowing it to be false or with reckless disregard for its truth or falsity.

Fourth, given Bar Counsel's close association with the Judiciary, special considerations apply to investigations by Bar Counsel into the conduct of a candidate in a judicial election during the pendency of the election. This Court is ultimately responsible for the regulation of the practice of law in the State. In furtherance of that responsibility, we, by Rule, have established the Attorney Grievance Commission and the position of Bar Counsel. The Commission, established by Rule 19-702, is comprised of 12 members, including nine attorneys and three non-attorneys, all appointed by this Court for three-year terms and subject to removal by this Court at any time. Among other duties, the Commission appoints Bar Counsel, subject to approval from this Court; supervises Bar Counsel's activities; authorizes Bar Counsel's employment of attorneys, investigators, and other staff; approves or rejects Bar Counsel's recommendations concerning actions to take after investigating complaints, including dismissal, reprimand, or the filing of a petition for disciplinary or remedial action; and prepares an annual budget for the disciplinary fund subject to this Court's approval….

The roles and activities of the Commission and Bar Counsel with respect to all aspects of attorney discipline investigations, proceedings, and dispositions are further established by Rules promulgated by this Court. Although the Commission and Bar Counsel, by design, function independently of this Court, they play a critical role in carrying out our responsibility to regulate the legal profession in Maryland by, as set forth in the Commission's mission statement, "protecting the public and maintaining the integrity of the legal profession." The Commission's and Bar Counsel's close connection to the Judiciary advise caution in taking actions against a candidate who is challenging sitting judges to avoid the possibility that members of the public may perceive such actions as motivated by a desire to support the sitting judges.

{Following the issuance of this opinion, we will refer to the Standing Committee on the Rules of Practice and Procedure consideration of adopting a rule establishing procedures for addressing alleged misconduct violations that arise during the pendency of election campaigns generally and campaigns for judicial offices specifically.}

Two Justices concurred in relevant part, stressing their concern about the Bar Counsel's taking on the investigation during the campaign.

I have a separate post on some of the specific claims against Pierre, and how lawyers are subject to discipline for allegedly knowingly false statements about the court system and the judiciary as a whole, even though such statements made by private citizens are generally immune from criminal prosecution or civil liability.