Lydia Lawless discusses the Maryland Attorney Grievance Commission and her experience as Bar Counsel with Dave Shuster, managing partner at Kramon & Graham. Lydia was the youngest person and first woman to serve as Bar Counsel and has argued more than 35 cases before the Supreme Court of Maryland. Lydia joined Kramon & Graham as a principal in April, 2023. 

00:00:00 Lydia's lawyer parents, education and decision to become a lawyer

00:03:15 Practicing law with her mother and sister and developing an interest in litigation

00:04:08 The history of the Attorney Grievance Commission of Maryland

00:07:33 Lydia's experience as assistant Bar Counsel and then as Bar Counsel

00:11:56 Lydia's goals as Bar Counsel: increasing salaries and diversifying the team

00:15:21 Following a case before the Bar Counsel: complaint, intake, investigation, disposition recommendation, peer review, circuit court, Supreme Court

00:34:12 Disciplinary outcomes and notifications to other jurisdictions

00:37:12 Missteps attorneys make and lessons for practitioners

00:43:20 Attorneys' succession plans and the Bar Counsel

00:45:20 Comparing Maryland's Bar Counsel to other states

00:46:35 How does the Bar Counsel handle criminal charges and investigations?

00:49:58 Lydia's accomplishments as Bar Counsel and plans for the future

Speaking With Experts is produced for informational and entertainment purposes only. It is not intended to provide legal or professional advice or to constitute any type of sponsorship or endorsement. Welcome to Speaking With Experts, conversations with exceptional people. I'm Dave Shuster, managing partner of Kramon & Graham and your host today. I'm speaking with Lydia Lawless. Until very recently, Lydia served as Maryland Bar Counsel for the Maryland Attorney Grievance Commission, the body that oversees the discipline of Maryland attorneys. Lydia was the youngest person and first woman to be appointed to the role of Bar Counsel. During her tenure as Bar Counsel, Lydia worked on numerous high profile cases and argued more than 35 cases before the Supreme Court of Maryland. After her distinguished service as Bar Counsel for five and a half years, Lydia became a principal of Kramon & Graham. I'm excited to talk to Lydia. Welcome.

Thank you. Very happy to be here.

Before we talk about your tenure as Bar Counsel, please tell the listeners a little bit about yourself, where you grew up and what led you to want to become a lawyer.

Sure. So I am a Maryland native. Grew up in Montgomery County. I never made it very far. I went to College Park for undergrad and American University Washington College of Law for law school and then have practiced in Maryland since graduating from law school. What made me want to be a lawyer? I think it was destined to be. Both of my parents are lawyers and it was never a moment in time where I realized I wanted to be a lawyer. I was a history major, which I think naturally lends itself to law school.

When do you recall first wanting to become a lawyer?

Probably when I was in undergrad. I was an ancient history major. And this may be shocking to you and to others, but I don't think that there are many job opportunities in the field of ancient history. And so while in law school, while in undergrad I started thinking about what I would do after graduation. My older sister was also considering going to law school at the same time and she and I actually studied for and took the LSAT together my last year of undergrad.

How did your parents react when you told them that you wanted to become a lawyer? Did they try to talk you out of it?

They didn't, they didn't. They were always very supportive, but I think it's sort of the best of both worlds in that they were available and understood and have been and continue to be resources for me but never put any pressure on either me or my sister to go to law school or to practice law.

What was your first job after graduating from law school?

So I went to work with my mother, who is a lawyer. And my sister was one year ahead of me in law school. So she had graduated the previous year and I went to practice law with the two of them. So it was the three of us for the first couple of years.

And what kind of practice was that?

My mother is a tax attorney and did primarily transactional work. And I came in, she does a fair amount of estate planning, probate administration and that type of work. And when I came in, I was more interested in the litigation side of that work. And so while I did some estate planning early on in my career, very quickly I handled the litigation that grew out of the transactional practice.

Talk about the history of the Attorney Grievance Commission in Maryland.

Sure. So the Attorney Grievance Commission was established in 1975 by the then Court of Appeals of Maryland, now our Supreme Court. And it was at a particular moment in the nation's history that I think a lot of states were struggling with and looking for ways to regulate lawyers. And so if you go back to that time period in the 1960s, there was a code of professional responsibility that was very vague, probably would not be able to stand constitutional scrutiny. And the discipline and regulation of lawyers was handled at a local and community level, like in Baltimore. The Baltimore City bench would have jurisdiction over Baltimore City lawyers. The bar association in the various counties would have the ability to investigate and prosecute lawyers. And that was the same sort of nationwide. And it led to what has been described sort of as a scandalous failure to regulate attorneys because it was so homegrown and it was so local. And the ABA did substantial work in the late 60s and early 70s to study attorney regulation and to try to come up with ways that would provide for more meaningful regulation of members of the bar.

Then in 1972, Watergate happened. And in the fallout from the Watergate investigation, I think that there were twelve attorneys that were implicated and whether or not charged faced regulation, suspended, disbarred, reprimanded, otherwise subject to discipline. And so in the wake of that, there was really, I think it pushed forward this need nationwide for states to look at attorney regulation because there was such a public outcry that so many lawyers were involved in Watergate. And you'll see across the country in the mid 70s, following Watergate up until the late 70s, that is, when most jurisdictions established what is the sister agencies to the Attorney Grievance Commission of Maryland and put procedures into place and really gave a mandate to the ability to regulate lawyers. In Maryland, I was the fourth Bar Counsel ever to serve. The first Bar Counsel was Holly Pittman. The original deputy many Marylanders may not know this is John Howard, Judge Howard, who sat in Baltimore City for many years. Then Mel Hirshman was the Bar Counsel from 1981 until 2010 or so when Glenn Grossman took over. And then I took over for Glenn in 2011. And the commission is in the process of appointing what will be the fifth Bar Counsel in the history of the State of Maryland.

And how did you make your way to the Office of Bar Counsel?

Sort of just by happenstance. I was in my fourth year of practice. I was not looking for another job and I just happened to come across a posting for an assistant Bar Counsel position that was open at the Office of Bar Counsel. And prior to that, I didn't really know that the office existed or certainly didn't understand what the office did. But once I looked into the job, I immediately knew that it was something that I wanted to apply for and something that I would be interested in.

And why is that?

I think the same reason that I loved the job the whole time I was there, because it is one public service and I felt sort of a calling to do something that contributed to society as a whole. But it's also a unique office where attorneys can do investigations, they can do trial work, but they also get to do appellate advocacy in the Supreme Court of Maryland. And I was fortunate to handle a couple of appeals early on while I was in private practice and I really enjoyed doing appellate work. And so I think that that was a large piece of it, but kind of the diversity and the breadth of the practice of that office.

So who was Bar Counsel when you first got there?

Glenn Grossman was Bar Counsel. Glenn Grossman is a dear friend and a mentor of mine. He had been Bar Counsel for maybe two years at the time that I joined the office in October of 2011. I think that's right.

And how long in total did you practice in the office?

I was in the office for a little over eleven years. About half of that was as an assistant Bar Counsel and half of that was as Bar Counsel.

And talk to me about the decision to put your name in the hat for Bar Counsel.

Sure. So I think it's like any decision anyone makes, you toil a lot over it. And I had the benefit of having been, like I said, in the office for a number of years at that point and I thought that I was sort of uniquely qualified to see where things could move forward. I kind of knew what the weak spots in the office were. I had some ideas for ways to improve the office and I knew that I could hit the ground running. I also thought that it was like so much in life, timing, in that it was kind of if not now, then probably never. I never intended to stay either in the Office of Bar Counsel or as Bar Counsel for my entire career. So at the time that the opening became available, a large piece of it was if I don't put my name in the hat now, there may not be another opportunity.

And what's the process? How is Bar Counsel appointed?

Yeah, so the Supreme Court of Maryland, as the authority that licenses attorneys to practice law in Maryland, has original and exclusive jurisdiction over attorneys law licenses. So the Office of Bar Counsel and the Attorney Grievance Commission are entities that are created by rule, by the Court of Appeal -- I mean by the Supreme Court of Maryland as part of their authority to regulate the practice of law. So the court appoints the commission, they populate the commission. It's made up of volunteers, and the commission appoints Bar Counsel with the consent of the Supreme Court.

And when you decided to apply, did you have any specific objectives or goals in mind for what you'd like to accomplish? When you got there, you were already there, but when you became Bar Counsel?

Yeah, sure. And like I said, Glenn Grossman is a friend and a mentor, and he did an incredible job of moving the office forward in the time that he was Bar Counsel, which I think was about was about six years. It might have been a little bit longer, but I think it was about six years. And he did a lot in advancing technology and bringing the office along in a lot of ways. And I just thought that there were certain things that could be built upon the good work that Glenn had done. One of my primary objectives for the office was to figure out a way to increase salaries for the attorneys in the office. Like I said, it's a public service position. I took a substantial pay cut to go work in the office. And during the five plus years that I had been there before I was appointed as Bar Counsel, I saw kind of the natural lifespan of attorneys coming in, getting this incredible experience and going other places because the salary wasn't competitive. And oftentimes the office would lose attorneys to other public service positions. So it wasn't going to law firms where we can't compete.

It was really the pay scale was so depressed. So that was one of my primary objectives. I also was very focused on working to diversify the attorneys and staff in the office. I thought it was really important that the people that are regulating lawyers, investigating lawyers, potentially prosecuting lawyers, represent the bar. And so I made that a priority. And then I think the other main thing that I was focused on at the time that I was appointed or things that I wanted to accomplish when I was appointed, was looking at ways that we could improve consistency and fairness in the way cases were handled. And so that was a lot of developing sort of internal processes and procedures to make sure or to try to ensure to do everything we could to ensure that equal cases were treated equally.

What concerns did you have going into the job.

Oh, man. I think, like any big job anyone goes into, they have concerns. I was a trial attorney at the time that I was appointed. I had never run an office. The Office of Bar Counsel is about 25 people, including lawyers, investigators, and support staff. And you're running a law office, a law firm. And so I didn't have kind of that administrative background. And so while I felt very confident in the work that the office did and how to improve upon the cases and those sorts of things, the administrative piece of it gave me some pause.

So talk about how a case that's before the Bar Counsel is initiated and take us through the typical process.

Sure. I guess this is with the caveat that I'm no longer in the office and new people come in and make changes. So this may not be current information, or it may become outdated, but the office receives somewhere — so I guess to start with a little bit of background, to put it into context, there are about 40,000 attorneys licensed to practice law active in the state of Maryland. The office receives somewhere between 1500 to 1800 complaints a year. Every single one of those complaints is reviewed by an attorney. Usually that attorney is in the intake department of the office. And that initial review is basically a summary judgment standard. Right. If everything that's alleged in this complaint were true, could it or would it constitute a violation of the rules of professional conduct? And so while the jurisdiction is wide, the question is really narrow. And so that complaint would be reviewed by an intake attorney. If it doesn't meet that standard, it can be dismissed or declined at that stage. But I would say while I was there, probably 98% of the complaints that were filed would then go to the attorney that was the subject of the complaint asking for a response. And of those, once the response came in, that would then be reviewed again by an intake attorney. Sometimes from there, it would go back to the person who complained to request additional information, or maybe additional requests for information from the attorney. And about 90% of complaints would then be closed at that intake level after.

The attorney responds — correct — and answers the complaint?

Correct.

And who typically submits the complaints?

Typically, I would say the majority of complaints come from clients. But because lawyers, because it's a self-regulated profession, unlike traditional consumer protection agencies, where there has to be a consumer relationship with the subject of the complaint, anyone can file a complaint against an attorney. So we would also get complaints from opposing parties, opposing counsel, from judges. People could also file complaints with the office based on information in the public, an article that they read in the newspaper or something that they read about that happened in a case. There's no requirement that you have personal knowledge to be able to file a complaint.

And can it be an informal letter? Does it have to be a formal legal document? Any rules that govern what a complaint has to look like?

Yeah, there's something in the rule that says a complaint has to allege. . . It's very basic, the attorney basic information about what the allegations of the complaint are and the like. But there's a complaint form you can fill out. You can send in a letter. I would accept anonymous complaints. Some other disciplinary agencies don't, but I did during my term as Bar Counsel, I accepted anonymous complaints.

So the attorney who is the subject of a complaint has the opportunity, after it goes through the office's intake procedure, gets notice of the complaint?

Correct.

Does the attorney see the actual complaint itself?

Yes, almost always. There is a provision in the rule that provided that Bar Counsel could initiate a complaint based on information that comes to Bar Counsel's attention from any source. And so there would be occasion where a complaint would be open in the name of Bar Counsel as the complainant based on something that was contained in a slip opinion from the appellate court or something like that. So there wouldn't be an actual complaint that was provided in that instance, but they would get notice that a complaint had been opened and the basis for the complaint having been opened.

And does the lawyer have a certain amount of time to respond after receiving notice from your office?

Yeah, my previous office, my prior office. I know it's tough. Yes. So the rules provide for a lot of deadlines in the disciplinary system because there's a strong policy, public policy, reason to move cases. Generally, it was a two-week period of time to respond with extensions liberally granted.

Does the complaining party see the lawyer's response to the complaint?

It depends. That's at the discretion of the attorney who is handling that particular case. A lot of times, and I would say probably the majority of times or in the majority of cases, the response to the complaint would be sent to the person who filed the complaint asking either for additional comments or saying, here's the response we received. The file is now closed. So that they had information and so that they understood that their complaint was taken seriously, that there is a process in place that lawyers are held to account for potential violations of the rules.

And after your former office determines that no further action should be taken based on the response, are there any appeal opportunities for the complaining party?

There are no appeals. So Bar Counsel's office is essentially like a prosecutor's office, prosecutorial discretion. We can review a complaint that's been closed. You can ask for a second opinion if additional information comes to light. You can supplement a complaint that's been closed and the office has discretion to reopen. But no, there's no appeal.

And does the attorney who's the subject of the complaint have to be concerned about confidentiality rules. I mean, typically, any information provided by a client is treated subject to confidentiality rules according to the rules of professional conduct. Are those rules no longer applicable when a client lodges a complaint against counsel?

Yeah. So there's a carve out. It's Rule 1.6 of the Rules of Professional Conduct, which governs confidentiality. And one of the exceptions to the general prohibition against disclosing confidential information is in a dispute between the client and the lawyer, which includes responding to a disciplinary complaint.

And how does the office or how did the office, when you were there, handle a complaint when there's a parallel malpractice case pending against the lawyer, who's the subject of the complaint?

It depends. There is the ability to defer complaints. So if there is pending litigation that goes directly to the subject matter of the complaint, there is a deferred docket where we could move a complaint to the deferred docket pending resolution or pending resolution of a particular issue in a matter that may have some bearing on our handling of the file.

All right. And then in the case where the response is received by the office and the office determines that the complaint has merit, notwithstanding whatever response was submitted by the attorney, what's the next step in the process?

Sure. So the office, as I mentioned, has not only a staff of attorneys, but a staff of investigators, and the office has a civil subpoena power. So if a complaint makes it out of that intake department, at that point, it was reviewed by me for a determination that further investigation was warranted. And I think it's important to note that when that determination is made, it's not necessarily a conclusion that there has been a violation of the rules. Sometimes it's just more information is needed. We need to interview witnesses. We need to subpoena records, whatever it may be, to be able to determine whether or not there is a violation. So at that point, it would be sent to me. I would review the cases. I would make a determination as to whether or not additional investigation was warranted. And if so, it would then, at that time, be assigned to a litigation attorney and to an investigator.

And then what happens?

So the attorney and the investigator will work together to develop whatever the investigative strategy is for that particular file. And it could be very different. Some files require a lot of witness interviews. Other files are really just based on the paper. So it's ordering a court file or maybe getting copies of depositions or things like that. So the attorney and the investigator would work together and gather whatever information, documentation they needed to be able to evaluate the complaint. At the conclusion of that investigation, the attorney then reviews the file and makes a recommendation as to disposition.

And what types of disposition recommendations are available.

Sure. So at that point in the process and this is all still part of a confidential investigative process. Nothing has been made public at this point in time. And so the attorney can make a recommendation that the file be dismissed. It can make a recommendation that maybe that there was some sort of very minor misconduct that we would feel confident the attorney accepted responsibility for and wouldn't be repeated. So it could be dismissed with a letter of cautionary advice or an informal admonition which is confidential and not considered discipline. And then there are varying levels of sanctions from a reprimand that could be agreed to with Bar Counsel and the attorney and anything that was more serious than a reprimand or where the attorney did not agree to a reprimand, the matter would be referred to peer review for. It's sort of a quasi-administrative process.

How does that work?

So the Peer Review Committee is unique to the disciplinary system in Maryland. And it was really created when there was an overhaul of the procedural rules for the office, I think in 2007 or thereabouts, and Judge Wilner and Judge Harrell sat down and put their heads together and came up with this process. And the Peer Review Committee, in the broad sense, is made up of both attorneys and laypeople that are volunteers that agree to sit on individual peer review panels. So if the assistant Bar Counsel or Bar Counsel makes the decision that the case should be referred to peer review, they file what's called a statement of charges. That then goes to the Peer Review Committee, which populates a panel of these volunteers. And then the Bar Counsel and the respondent attorney have an opportunity to meet with the peer review panel, put forth their case, their defenses, their explanations in a confidential setting. And then the panel makes an independent recommendation as to what they believe the disposition should be.

And does the peer review process look like or function as a hearing, a contested hearing where evidence is presented and arguments are made?

It does not because as I mentioned, it's like a quasi administrative and it is also sort of like a mediation in that it remains confidential. The idea is that the interested persons come to the table and can speak freely about what happened and what the reasons are and without fear that anything they say can later be used against them. So the complaining witness or the person who filed the complaint can come and say what they want to say. Those statements cannot be used to impeach them at a later time. The rules of evidence don't apply. It's sort of a group of people sitting around a conference room and there's some formality to it in that generally there are opening statements, statements of position statements, I would say. And then the panel can ask questions, the panel members can ask questions, the respondent attorney can ask questions, Bar Counsel can ask questions.

So one outcome from the peer review could be an agreed disposition.

An agreed disposition? The Peer Review Panel makes an independent recommendation to the Attorney Grievance Commission what they think the disposition can be, and that recommendation could be dismissal. Dismissal with an admonition, a reprimand, diversion, or public charges.

Okay, and talk about the public charges option.

Yeah. So once the Peer Review Panel has made its independent recommendation to the commission, the commission would then review the file, and they review the file in their adjudicatory function where they sit, and they meet in a closed meeting, go over the files, and make a determination and instruct Bar Counsel what to do. So if they look at the statement of charges, they'll look at any response to the statement of charges, and they'll look at the report that's filed by the Peer Review Panel, and they'll say, yes, we agree with the panel. No, we don't agree with the panel. And they can tell Bar Counsel what to do at that point. So whether it's the recommendation of the panel and or Bar Counsel that public charges be filed, the commission always has the option to direct the filing of public charges, notwithstanding any recommendation that's made. So if the direction is to file public charges, it's at that point that the disciplinary process is no longer confidential. Bar Counsel then files a petition in the Supreme Court because they have original jurisdiction. The petition looks like a complaint. It has basically recitation of facts and then charges the rules that Bar Counsel contends were violated. And then the Supreme Court, because it is an appellate court and doesn't take evidence, transmits the case to a circuit court for an evidentiary hearing.

And that's before a circuit court judge without a jury?

Correct.

And that looks like the trial?

Correct.

Okay.

Yeah.

And are most attorneys, most respondent attorneys at that point represented by counsel?

Unfortunately not.

Why do you say unfortunately?

Because I think everyone is better served when they're represented by counsel in adversary proceedings, whether you're a lawyer or not. And I never kept statistics on it while I was in the office, while I was Bar Counsel, in part because sometimes lawyers would get in and then they would get out. But I would say, if I had to guess, I would say maybe half are represented by counsel.

Okay. So at the circuit court hearing, the judge hears all the evidence, hears arguments and then makes a recommendation?

Close. Yeah. They issue findings of fact. So the judge basically sits as a magistrate, and their mandate is to make findings of fact and recommended conclusions of law. From those findings of fact and conclusions of law, the file then is transmitted back up to the Supreme Court, where the Supreme Court reviews findings of fact under an abuse of discretion standard, and they review conclusions of law de novo.

And does the Supreme Court always afford oral argument? And then the Supreme Court, like any other matter that comes before the Supreme Court issues a decision?

Correct. And so once the matter is transmitted back to the Supreme Court, both sides have an opportunity to file exceptions to either the findings of fact or the conclusions of law. And at that time, both sides also have an opportunity to make a recommendation as to what they think the appropriate disposition is. Maryland doesn't actually have permanent disbarment. Some jurisdictions do. Maryland does not. Attorneys can petition for reinstatement in Maryland from disbarment. Some jurisdictions have a mandatory sort of sit out period. I think DC is if you're disbarred, you can't petition for reinstatement for five years. Maryland doesn't have any specified period of time, but five years would probably be advisable.

Are there jurisdictions that do have permanent disbarments where there's no opportunity to apply for reinstatement?

Only a handful still have permanent disbarment.

Okay, so that's, on the one end of the spectrum, is the most severe outcome. What are the other ranges of disciplinary outcomes?

So a suspension for any period of time, really ranging from a 30-day fixed-term suspension up to an indefinite suspension. The Court can also stay a suspension in favor of a term of probation, or the Court can issue a reprimand or dismiss the case.

When an attorney is suspended for a period of time, what obligations does he or she have with respect to their clients and their law firm?

How does that work? The rules provide specifically for very detailed obligations that attorneys have when they've been suspended or disbarred that are all geared at protecting their clients. And you can imagine the pending clients of an attorney at the time they may be suspended or disbarred are extremely vulnerable. So it's really focused on timely notifying the clients, making sure the clients receive their files, any unearned funds, notifying the courts sort of appropriately and orderly winding down their practice with the protection of the clients in mind.

And what about in the case of a reprimand? Are there obligations on the attorney to notify the clients of the reprimand?

No, there's no obligation to notify attorneys of a reprimand. There is an obligation to notify another jurisdiction where the attorney may be licensed of any type of sanction, a reprimand, suspension, or disbarment.

So talk about the reciprocity. If an attorney and many attorneys are licensed in multiple jurisdictions, let's talk about a disciplinary action outside of Maryland.

Sure.

Does the Bar Counsel get notice that a member of the Maryland bar has been disciplined by another jurisdiction?

Yes.

Okay, how does that work?

So in one of two ways. Attorneys are actually required under the rules — Maryland attorneys are required under the rules to notify the Office of Bar Counsel if discipline hasn't been imposed in any other jurisdiction. The other jurisdictions, whether it be the parallel Office of Bar Counsel or the court or board or whoever it is that issues the sanction, also may notify the Office of Bar Counsel.

And if a lawyer is disciplined here in Maryland, does Bar Counsel notify the other jurisdictions where they're licensed?

Yeah. So the rule provides that the clerk of the Supreme Court is to notify the other jurisdictions. I think Bar Counsel also does in many instances, and the attorney, like I said, is supposed to notify the other jurisdictions as well.

So during your tenure, did you see sort of common themes or common types of missteps that attorneys made that got the attention of Bar Counsel?

Yes.

Talk about some of those.

Yeah. So when I came to the office, as I said, I had been doing a fair amount of fiduciary litigation, some probate litigation, some other business disputes. I was doing probate administration as well. And when I went to the office, I thought that there would be a lot of kind of that type of stuff, like the fiduciary obligations, conflicts of interest, maybe accounting trust account, financial investigations. And those exist, to be sure. But kind of the bread and butter of the work of that office involves allegations of lack of competence, lack of diligence, and lack of communication, which I always found sort of shocking. Right? Because these are the most fundamental obligations that attorneys owe to their clients. But they really make up probably between a third and 40% of the complaints that are investigated every year. So the complaints that make it out of that intake involve competence, diligence, and communication.

Are there lessons for practitioners? Is it as obvious as just keep your client informed and stay in touch and return phone calls and be responsive?

Yeah. I mean, really, that is so important and so critical. And I think that even more so is when something goes wrong. Clients file complaints, in my experience. They file complaints where they feel like the attorney didn't adequately explain something to them, didn't adequately or timely provide them with information about what happened, or provide how they would move forward when there is something adverse that goes on in the life of the client's case. And oftentimes the clients, they feel disrespected, I think, which is why they file complaints. So I think, yes, communication, regular communication, meaningful communication, but particularly communication where something adverse happens in the client's matter.

It may not be something that was the fault of the attorney. Litigation is an uncertain process, and things happen that are either unexpected or they just don't go your way in a case. Talk about sort of best practices when it comes to communicating with the client about an outcome that wasn't hoped for or something that goes wrong, a ruling that was unexpected.

Yeah. I think managing expectations is really key to that from the outset of the representation, both when the client should expect to hear from you, how you communicate with them, if it's by phone, if it's by email, if you text with the client so the client understands when they should hear from you, and then if there is a potential for an adverse ruling or whatever it may be to advise the client that that is a potential going into the matter, so that if it becomes an actuality, it's not shocking to them. So you're not telling the client, oh, we've got this. We're 100% going to win. This is what the judge is going to do, this is what the court's going to find so that if something does happen, they're prepared for it.

Were you also seeing sort of circumstances behind the scenes that were affecting the lawyer's judgment? For example, addiction issues or mental health issues or general health issues that might be the cause of what's triggering the complaint in the first place?

Yeah, there have been so many studies, and I think there's really, rightfully so, a lot of discussion, not just with attorney regulators, but amongst the bar, about how substance use and mental health issues sort of disproportionately affect attorneys. And those issues present themselves not infrequently in disciplinary matters. Another area of concern, which I think is a growing area of concern, is for attorneys that are towards the end of their career that may have some sort of diminished capacity that's age related, where they're missing a step or two or on a decline and maybe aren't aware that that may be happening.

Did you notice whether complaints are more frequently filed against either brand new attorneys on the one hand, or attorneys like the ones you just described who are declining?

It would all be anecdotal because we didn't keep statistics on the number of years that attorneys were practicing law. So their age may not correspond to their number of years at the bar. So I think that the majority this is totally anecdotal, but I think the majority of the complaints that I saw were kind of in that middle range, maybe the 15 to 25 years at the bar where complaints are coming in.

And then what's the role of Bar Counsel in a situation where a solo practitioner or the single owner of a firm becomes incapacitated or dies and there's no one there within the firm to manage the clients?

Yeah. So another discussion I think that should be had and is being had both in Maryland and elsewhere, is what attorneys' obligations are to make succession plans. And it really goes for not just protection of the client so that if something happens, whether it's age related or whether you step out off the curb and are hit by a bus to ensure that the clients are covered. But also, in my experience, it's as much for the attorney's family members because it's so difficult for the family members when something happens to an attorney and then the Office of Bar Counsel is calling asking questions about client files where really they're dealing with something that is often catastrophic. So Bar Counsel, under the rules, has the sole authority to petition a circuit court where a law practice or law office is located for the appointment of a conservatorship. And that's really a worst case scenario for lawyers. If they have a succession plan, obviously that's the best-case scenario. But a conservatorship is a dismantling of a law practice. Its concern is returning client files and returning client funds.

And in that process are the clients, is there some mechanism for ongoing matters to be transferred to lawyers who can then take over the case competently?

Yes.

Did you notice any differences or major differences between how Maryland handles grievances versus other states?

Yeah. I had mentioned earlier that the peer review process is unique to Maryland, and I think Maryland's procedure for attorney discipline is one of the best in the country. I think that it is extraordinarily fair. I think it gives attorneys opportunities at multiple points in time to provide information, to cooperate, to resolve matters before anything is made public. And the system is also fast. Like I said, there are timelines with every single phase of the disciplinary process. So start to finish in Maryland, a case, a contested case, that goes from investigation to argument and opinion by the Supreme Court that can be done in three years. Other jurisdictions, you're looking at six, seven, eight years from start to finish. DC is notoriously, I think, one of the slowest in the country, where sometimes it takes ten or twelve years to resolve a disciplinary complaint.

How did your office handle complaints where the respondent attorney is accused of criminal misconduct?

So that would come up in a number of different scenarios. One would be where the attorney is the subject of a criminal investigation or criminal charges. In those instances, my policy was always to defer any investigation. And the reason is twofold. One, the attorney has Fifth Amendment rights, and so I didn't want to put any attorney in a position where they felt like they had to waive those rights in order to defend the licensing proceeding that could then be used against them in the criminal case. And two, I never wanted to interfere with law enforcement. So in those matters, we would always defer investigation and prosecution. If the attorney is convicted of what is defined in the rules as a serious crime, which is any felony or other charge that involves dishonesty, even if not a felony, and I think the definition includes anything that's subject to incarceration of three years or more, there was a mechanism by which we could immediately go to the Supreme Court. We wouldn't relitigate the underlying criminal case. We would rest on the criminal conviction and go to the court just on the question of what the appropriate sanction is. So that's if the attorney was charged first. Sometimes the situation would come up where a complaint was filed with the Office of Bar Counsel. And through our investigation of the complaint, we came to believe that the attorney was engaged in criminal conduct. The rules provide a mechanism by which we could then make a referral to law enforcement. And so that would be either the local state's attorney's office, occasionally the US Attorney's Office, sometimes the attorney general's office. And if we made that referral, again, we would defer our investigation to allow law enforcement to decide whether they were going to do anything with the case. Or if they weren't, we would ask that they would tell us. So we would then pick up our investigation. Same policy reasons. Another piece of the work of the Office of Bar Counsel involves the unauthorized practice of law, which is a misdemeanor in the State of Maryland. And so we would see that in two ways. One would be either non attorneys that are engaged in the unauthorized practice of law in the State of Maryland. We could petition for injunctive relief, or we could refer the matter for criminal prosecution. The other is an attorney who was suspended or disbarred that continues to practice law, is also engaged in the unauthorized practice of law, which may be criminal. And so if that came to our attention, either through the attorney's failure to appropriately wind up their practice or through subsequent complaints that come in, we could refer the matter out or seek additional discipline or injunctive relief.

As you pointed out earlier, you're no longer the Bar Counsel. So talk about your decision to step down and what you have in mind for the future.

Yes. So when I was appointed Bar Counsel, I only anticipated staying in the job, I had thought six to eight years. There were specific things I wanted to do and I accomplished many of them. I diversified the office in many ways. I was able to successfully recalibrate the salary structure for not just the attorneys, but also the investigators and the staff in the office. I put a lot of procedures in place to kind of work on the consistency and fairness issues. And through the work of Bar Counsel, you get to see every single type of complaint, right? Every single type of matter, every single area of the law. So an immigration complaint comes in and you have to learn about immigration law. A matter comes in on a transaction and you have to learn about the underlying issues. And that is one of the things I loved most about the job. But I think it also by the time I decided to leave, I realized that there were more things that I wanted to do that I was really interested in kind of getting back to the practice of law to be able to help clients avoid conflict and avoid litigation to the extent possible and to be able to give advice. Bar Counsel is prohibited from giving any advice, any legal advice. And I found that more difficult as time went on.

So you're biting your tongue the entire time you're seeing things?

Exactly. And I'm like, I have the answer. I could fix it, like, if you just let me in and I'll do a training. I think going into private practice allows me to do a lot of those other things that I'm excited about doing.

Lydia, it was great talking to you.

It's great talking to you. Dave.

I wish you all the best in private practice.

Thank you very much.