Attorney Grievance Comm'n of Md. v. Dyer

453 Md. 585

162 A.3d 970

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Allen Ray DYER & Susan Baker Gray

Misc. Docket AG No. 36, Sept. Term, 2015

Court of Appeals of Maryland.

June 23, 2017

Argued by Lydia E. Lawless, Senior Assistant Bar Counsel, (Raymond A. Hein, Acting Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner

Argued by Allen Ray Dyer (Ellicott City, MD) and Susan Baker Gray (Highland, MD), for Respondents

Argued before Barbera, C.J. Greene, Adkins, McDonald, Watts,^* Hotten, Getty, JJ.

Getty, J.

The road to Maryland's political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.

Prior cases before Maryland's appellate courts demonstrate the difficulties for an attorney advising clients mounting a referendum petition drive. For example, a signature on a petition can be declared invalid if it does not reasonably match the citizen's name as it appears on the voter registration rolls.

Howard Cnty. Citizens for Open Gov't v. Howard Cnty. Bd. of Elections , 201 Md.App. 605, 625–29, 30 A.3d 245 (2011). Moreover, a county election board is not required to provide a citizens' group with prior notice or an opportunity to be heard before declaring signatures on a referendum petition invalid. Id. at 632, 30 A.3d 245. A shorter-than-normal deadline exists for requesting judicial review of an election board decision, and failure to meet the ten-day-filing requirement renders the submitted petitions time-barred. Roskelly v. Lamone , 396 Md. 27, 41 n.18, 912 A.2d 658 (2006).

In addition, under the Maryland Constitution's two-step process for filing signatures, failure to meet the first deadline by submitting one-third of the necessary signatures as verified by the local board of elections is a complete bar to the referendum process. Cf. Selinger v. Governor of Maryland , 266 Md. 431, 436–37, 293 A.2d 817 (1972) (holding petitioners were not entitled to bring bills to referendum where they failed to obtain one-half of the necessary signatures by the first deadline, as required by the relevant constitutional provision at that time); see also Md. Const. art. XVI § 3 (b) (requiring one-third of the necessary signatures by the first deadline). In another case, this Court held that a fatally defective ballot question for a referendum vote regarding the zoning of a property in Anne Arundel County deviated from the terms of the statute, and thus the election result was declared void and treated as a nullity. Anne Arundel County v. McDonough , 277 Md. 271, 307–08, 354 A.2d 788 (1976).

In this case, Allen Ray Dyer and Susan Baker Gray (collectively, "Respondents") represented a group of citizens engaged in a petition drive to take to referendum a zoning ordinance passed by the County Council of Howard County, Maryland. As Ms. Gray attempted to navigate the technical obstacle course of the Election Law Article, the Election Director of the Howard County Board of Elections ("the Board") issued an adverse ruling. The Election Director declined to certify the petition for placement on the ballot, explaining that the petition did not meet the statutory requirement that the petition must provide a fair and accurate summary of the aspects of the law being challenged.

Next, as Ms. Gray sought judicial review under the shortened deadline set by the 2014 election calendar, the Circuit Court for Howard County failed to notify her of a hearing on the consolidation of four court cases challenging the Board's conduct of the petition process. As the litigation progressed, opposing counsel William E. Erskine, who represented builders and other business clients in opposition to the referendum effort, filed complaints against Ms. Gray and Mr. Dyer, who had joined the litigation as Ms. Gray's co-counsel, with the Attorney Grievance Commission, Petitioner, alleging misconduct related to the litigation.

It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland's appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel's lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel's authority to conduct a "confidential" investigation and refused "to participate in secret attorney grievance proceedings" on First Amendment grounds.

On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a "Petition for Disciplinary or Remedial Action" against Respondents, charging them with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), 1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).¹

On September 3, 2015, this Court initially designated the Honorable Louis A. Becker III of the Circuit Court for Howard County to hear this attorney discipline proceeding. On November 30, 2015, in the Circuit Court for Howard County, Respondents filed, among other things, a motion to transfer venue. On December 18, 2015, Bar Counsel filed a response to the motion to transfer venue. On December 23, 2015, Respondents attempted to re-file in this Court, among other things, the motion to transfer venue as well as a supplement to the motion to transfer venue. On January 5, 2016, this Court issued an order denying the motion. Then, on January 29, 2016, upon receiving the Circuit and County Administrative Judge of the Fifth Judicial Circuit's request to transfer the case, this Court designated the Honorable Ronald A. Silkworth ("the hearing judge") of the Circuit Court for Anne Arundel County to hear this attorney discipline proceeding.² On March 14, 15, 16, 17, April 1, 4, 5, and May 5, 6, 9, 10, 11, 13, 19, 20, and 24, 2016, the hearing judge conducted a hearing. On October 7, 2016, the hearing judge filed in the Circuit Court for Anne Arundel County a 115–page opinion including findings of fact and recommended conclusions of law, which was filed in this Court on October 18, 2016. In his opinion, the hearing judge concluded that Respondents had not violated any of the MLRPC charged.³

On January 5, 2017, we heard oral argument. For the following reasons, we shall reprimand Mr. Dyer and dismiss the charges against Ms. Gray.

BACKGROUND

The hearing judge made comprehensive findings of fact consisting of approximately seventy-five pages of his opinion and found the following facts, which we summarize.

On December 29, 1976, this Court admitted Mr. Dyer to the Bar of Maryland. On December 22, 1987, this Court admitted Ms. Gray to the Bar of Maryland. At all relevant times, both Respondents maintained solo law practices in Howard County.

A. Howard County Zoning and Referendum Petition Process

The Howard County Zoning Board periodically submits a comprehensive zoning plan to the Howard County Council ("the Council") for review and approval. To enact the comprehensive zoning plan, the Council must pass an ordinance approving and adopting it, and the County Executive must sign the ordinance into law. Howard County citizens may challenge the law, or any portion of it, by submitting a referendum petition to the Howard County Board of Elections. Howard County Charter § 211. Pursuant to the Howard County Code, "[t]he form and content of a petition shall be consistent with the requirements of section 6–103 of the Election Law [Article] of the Maryland Code." Howard County Code § 10.402. Thus, a referendum petition must be signed by a specified percentage of the qualified voters of Howard County, and, among other requirements, must fairly and accurately describe the aspects of the law that are being challenged.

Section 6–202 of the Election Law Article of the Maryland Code provides for an "advance determination," a process by which referendum petitioners may contact the chief election official of the appropriate election authority—here the Election Director of the Howard County Board of Elections—and submit to him the proposed format of their petition, in advance of formally filing it, "for a determination of its sufficiency." Md. Code (2002, 2010 Repl. Vol. & 2014 Supp.), Election Law Article ("EL") § 6–202(a).⁴ Once the referendum petition is formally filed, if it satisfies all of the required criteria, the Election Director must certify that the petition process has been completed and that the question has qualified to be placed on the ballot. In practice, anyone seeking to have a question placed on the ballot must obtain a final judicial decision regarding its validity...