In late February, the Maryland Court of Appeals (which is the highest court in Maryland) disbarred a long-time Maryland attorney, James Albert Frost, for alleging in emails that several Maryland judges had engaged in misconduct. The decision,
Attorney Grievance Commission v. Frost, outlines the pertinent facts:
Respondent was admitted to the Maryland Bar on June 29,
1972. He does not maintain an office for the practice of law. On April
23, 2012, Respondent wrote an email to his ex-wife, stating, inter alia:
With regard to Case #110082-C, you know or should know that:
(1) Ann S. Harrington, a
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| James Albert Frost |
lawless judge, arranged for deputy sheriffs of
the Montgomery County, MD, Sheriff's Office to illegally arrest me on
May 13, 2008, with no probable cause to do so and there by committed the
crime under State of Maryland law of making a false report to an agency
of the state with police powers; . . . (3) There was no basis in law or
in fact for Judge Stephen P. Johnson, a weak man and corrupt judge
acting under improper and political influence, to have me locked up in
the county jail on a "no bond" order for 87 days and 87 nights but
that's what was done; and (4) The crooked State's Attorney for
Montgomery County, MD, John J. McCarthy, Esq., a protégé of Douglas F.
Gansler, Esq., the corrupt Attorney General of Maryland, and a political
ally of Maryland Governor O'Malley, a pretty-boy hack politician,
didn't let his assistant prosecutors drop the phon[y] charge against me
until August 8, 2008.
With regard to Case #11041-C . . . you know or should know
that the Maryland State Police deceived District Court of Maryland
Commissioner Kaitlyn Boyle into signing a warrant to arrest me and then
deceived Circuit Court Judge Joseph A. Dugan, Jr., into signing a search
and seizure warrant by and through perjury on the warrant applications
signed on August 13, 2008, by Maryland State Trooper Michael Brennan,
who was ordered to do that by Maryland State Police Captain Clifford T.
Hughes, his supervisor, and Maryland State Police Superintendent Terence
B. Sheridan, who were acting under improper and political influence
exerted (through an intermediary) by Governor O'Malley and his wife,
Judge of the District Court of Maryland for Baltimore City Catherine
Curran O'Malley.
Respondent made the April 23, 2012 statements regarding the
Honorable Ann S. Harrington, specifically calling her a "lawless judge"
and accusing her of "arrang[ing] for deputy sheriffs of the Montgomery
County, MD Sheriff's Office to illegally arrest [him]" knowing the
statements to be false and with reckless disregard as to their truth or
falsity. Respondent has no facts to support the statements made
regarding Judge Harrington.
Respondent made the April 23, 2012 statements regarding the
Honorable Stephen P. Johnson, Retired Judge for the District Court of
Maryland for Montgomery County, specifically calling him "a weak man and
corrupt judge acting under improper and political influence . . ."
knowing the statements to be false and with reckless disregard as to
their truth or falsity. Respondent has no facts to support the statement
regarding Judge Johnson.
Respondent made the April 23, 2012 statement regarding John
J. McCarthy, State's Attorney for Montgomery County, specifically
calling Mr. McCarthy a "crooked" State's Attorney, knowing the statement
to be false and with reckless disregard as to its truth or falsity.
Respondent has no facts to support the statement regarding Mr. McCarthy.
Respondent made the April 23, 2012 statement regarding
Douglas F. Gansler, Attorney General of Maryland, specifically calling
Mr. Gansler "corrupt," knowing the statement to be false and with
reckless disregard as to its truth or falsity. Respondent has no facts
to support the statement regarding Mr. Gansler.
Respondent made the April 23, 2012 statement regarding
Governor O'Malley, specifically that he exerted "improper" influence
over members of the Montgomery County Police Department, knowing the
statement to be false and with reckless disregard as to its truth or
falsity. Respondent has no facts to support the statement regarding
Governor O'Malley.
Respondent made the April 23, 2012 statement regarding the
Honorable Catherine Curran O'Malley, Judge [for the] District Court of
Baltimore City, specifically that she exerted "improper" influence over
members of the Montgomery County Police Department, knowing the
statement to be false and with reckless disregard as to its truth or
falsity. Respondent has no facts to support the statement regarding
Judge Curran O'Malley.
On or about May 2, 2012, Respondent mailed a copy of the
April 23, 2012 email to George Meng, Esquire. Prior to May 2, 2012,
Respondent had no relationship or communication with Mr. Meng. On or
about May 2, 2012, Respondent forwarded a copy of the April 23, 2012
email to Paul Carlin, Esquire. On or about May 2, 2012, Respondent
forwarded a copy of the April 23, 2012 email to Katherine Kelly Howard,
Esquire.
On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23, 2012 email was sent to him, directing him to Rule 8.2,
8.3 and 8.4 of the Maryland Lawyers' Rules of Professional Conduct and
requesting a response as how the April 23, 2012 email did not violate
Rules 8.2 and 8.4 and
did not require reporting to Petitioner pursuant to Rule 8.3. On May 10,
2012, no response having been received to his May 4 email, Mr. Meng
again emailed Respondent requesting a response to the questions posed on
May 4, 2012. On May 18, 2012, Respondent emailed Mr. Meng stating, "You
should have something from me in your mail Monday." On May 18, 2012,
Respondent mailed Mr. Meng a letter directed to Chief of Police J.
Thomas Manger, Montgomery County, Maryland. The May 18, 2012 letter did
not, in any way, respond to the questions posed by Mr. Meng in his
emails of May 4 and May 10. Mr. Meng received the May 18, 2012 letter on
May 21, 2012. On May 21, 2012, Mr. Meng emailed Respondent again
requesting a response to his May 4 and May 10 emails.
On May 23, 2012, no further communication having been
received from Respondent, Mr. Meng filed a complaint with the Petitioner
and enclosed: (1) Respondent's April 23, 2012 email, (2) Mr. Meng's May
4, 2012 email to Respondent, (3) Mr. Meng's May 10, 2012 email to
Respondent, (4) Mr. Meng's May 18, 2012 email to Respondent, (5)
Respondent's letter of May 1, 2012 to Chief of Police J. Thomas Manger,
and (6) Mr. Meng's May 21, 2012 email to Respondent.
Attorney George Meng was no ordinary member of the Maryland Bar. He was a long-time member of the Attorney Grievance Commission. Meng's complaint was forwarded to Frost by Bar Counsel. Frost responded:
"The statements of mine concerning which objections
have been presented to your office are protected from state action by
the free speech clause of the First Amendment to the United States
Constitution."
The next day, Frost followed up with a letter stating
:
How did it happen, I wonder, that ten days after my e-mail
message of April 24 long-time A.G.C. of Maryland Commissioner George
Meng (to whom I had forwarded that e-mail on the subject perjury) sends
me an e-mail message (for the first time in his life) with the absurd
allegation that I'm in violation of Rule 8 of the Rules of Professional
Responsibility? No reasonably prudent individual would believe that you
and he and, most likely, some other people had not conferred with one
another about me and my truth-telling before on May 4th George undertook
his fruitless efforts to have me assume the role of attorney respondent
who offers an explanation/states some defense to a "complaint." How did
you as the Maryland Bar Counsel dare to get involved in this sort of
activity, Glenn? You should be ashamed of yourself.
Maryland's Bar Counsel asked for additional information from Frost who did not cooperate. Then Bar Counsel decided to prove the elements of the Frost charges by sending requests for admissions. Frost failed to respond. The Hearing Officer relied on the admissions to find Frost had violated Rule 8.2 in making reckless and untrue allegations about the judges. In reviewing the Hearing Officer's decision, the Court
stated:
We agree with the hearing judge's conclusion that each of
Respondent's statements relate to the integrity and/or qualifications of
the named individuals, and that Respondent made the statements knowing
they were false or with reckless disregard as to their truth or falsity.
At the outset, we reject the hearing judge's conclusion that
Respondent's statement as to Governor O'Malley violates Rule 8.2(a),
because Governor O'Malley, the chief executive of the State of
Maryland, is not a "public legal officer" for the purposes of the Rule. The five remaining statements, however, involve judges or public legal officers, which fall under the purview of Rule 8.2(a).
We shall hold that by making those five statements, with the knowledge
that they were false or with reckless disregard for their truth or
falsity, Respondent violated Rule 8.2(a), and further that Respondent's statements are not entitled to protection under the First Amendment.
Moreover, these statements are, generally, the kind of statements that Rule 8.2(a)
is intended to prevent. Allegations of corruption tend to discredit the
public's trust and confidence in the judiciary and judicial system. Our
analysis of this case rests on Respondent's statements taken together
as a whole. For the sake of clarity, we note that certain phrases,
alone, may not necessarily rise to the level of an attack on a judicial
officer or public legal officer sufficient to warrant action pursuant to Rule 8.2(a). For
example, Respondent's use of the words "lawless" and "weak man," without
further allegations or criticisms, in another circumstance might not
constitute a violation of Rule 8.2(a).
Here, nevertheless, where those phrases were used in conjunction with
false factual allegations of corrupt activity, to include collusion with
law enforcement and "arrang[ing] for deputy sheriffs . . . to illegally
arrest [him]," Respondent is clearly in violation of Rule 8.2(a).
In its review, the Maryland Court of Appeals at least attempted to clarify that statements of opinion were not necessarily proscribed by Rule 8.2. Nonetheless, the Court's claim Frost's statements were factual in nature and not opinions is iffy at best. That someone believes that he was subject an an "illegal arrest" and public officials engaged in "collusion" most certainly could be classified as opinion. Simply calling those statements one of fact rather opinion, does not make it so.
Most notably though, by going after Frost's private comments made in an email, the Maryland Court of Appeals simply ignored the stated purpose of Rule 8.2 (outlined in Comment 1 to the rule) which is to prevent "false statements by a lawyer [that] unfairly undermine
public confidence in the administration of justice." (It should be noted here that the Supreme Court in
Gentile v. Nevada said that this narrow limitation on an attorney's free speech applies only to comments made that interfere with the administration of justice i
n a pending case, a fact that most state supreme courts simply ignore when handing out Rule 8.2 discipline.) Although the Court claimed its action against Frost is necessary to protect the public, there was no evidence cited by the court that Frost's private comments, which were copied to a member of the Attorney Grievance Commission, had the effect of undermining "public confidence" in the judiciary. In fact, it was the Meng, Bar Counsel and Maryland Court of Appeals, which took the action which made Frost's private commentary public, an action that is certainly much more likely to "undermine public confidence in the judiciary" than Frost's comments.
Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the
Frost case will be a warning shot to let other Maryland attorneys know that if they dare criticize a judge, publicly or privately, they can be targeted for discipline.
Unlike the assumed harmful effect on the public by judicial criticism, the chilling effect on an attorney's free speech rights has a real effect that harms the public. Attorneys are by nature the ones best positioned to act as whistleblowers as to judicial misconduct and when their speech is chilled they instead choose to remain silent. Just recently the Indiana Supreme Court removed Marion County Judge Kim Brown from the bench for numerous counts of misconduct. Undoubtedly attorneys who practiced in her court for years knew about the allegations, but instead chose to remain silent lest they become the next target of the Indiana Disciplinary Commission which by my study, is the most aggressive disciplinary body in the country in terms of pursuing attorneys for discipline for criticizing judges.
Then you have the "Kids for Cash" scandal in Pennsylvania, in which two judges were getting kickbacks in exchange for sentencing kids to a private correctional facility. A commission later found that attorneys in that county knew what was going on but remained silent, which the commission simply assumed was due to a lack of education attorneys had about their responsibility to report unethical judges. What that commission ignored was the more likely reason attorneys remained silent - in three Rule 8.2 cases leading up to that scandal, the Pennsylvania Supreme Court had suspended two attorneys for 5 years and disbarred another one, all for accusing county judges of misconduct.
A Google search of "James Albert Frost" reveals several news reports of extremely bizarre behavior that has resulted in arrests and suggests that the elderly attorney might be having mental health issues. While Frost's removal from the practice of law may well have been advised, the way the Maryland Court of Appeals did it, by using Rule 8.2 to disbar Frost for his private emails, rather than his very public behavior, there is no doubt this case will have very harmful consequences to the Maryland bar and to the public. It will no doubt lay the precedent for future prosecutions of Maryland attorneys for what is actually protected speech under First Amendment precedent, a fact Maryland, like most states, simply ignores while zealously enforcing Rule 8.2 to sanction attorney comments critical of judges.
I would be remiss without including
the excellent concurrence/dissent by Justice McDonald who appears to understand the interrelationship between Rule 8.2 and an attorneys' free speech rights, as well as the impropriety of the Bar Counsel using Requests for Admission to "prove" the ultimate facts in a case:
Although the Majority opinion is well thought out and carefully
written, I cannot join it. Our primary purpose in attorney discipline is
to protect the public from inept or errant lawyers, not to protect
public officials from criticism, even if unjustified. I would suspend
Mr. Frost for his failure to respond adequately to Bar Counsel's
inquiry, but am not comfortable disbarring on this limited record for
what appears to be largely an expression of opinion, misguided though
that opinion may be.
Under the Maryland Lawyers' Rules of Professional Conduct ("MLRPC")
8.1(b), an attorney should respond to a lawful inquiry from Bar Counsel,
even if, in the attorney's view, the underlying complaint is frivolous
or any resulting disciplinary action would ultimately prove untenable. Mr. Frost's failure to respond
substantively to Bar Counsel's inquiry thus violated MLRPC 8.1(b). An appropriate sanction would be an indefinite suspension with a
special condition of readmission that he cooperate with Bar Counsel's
inquiry. In addition, the record of this matter documents erratic
behavior by Mr. Frost that raises reasonable questions about his
judgment and competence (in the broadest sense). Given our
responsibility to the public with respect to those we license to serve
it as attorneys, I would also condition Mr. Frost's readmission on the
results of an appropriate medical evaluation. See Maryland Rule 16-760(h)(1).
MLRPC 8.2(a) incorporates in the disciplinary rules a restriction on attorney speech outside the courtroom or a legal proceeding. The alleged violation of MLRPC 8.2(a)
in this case is based on the content of an e-mail that Mr. Frost sent
to his ex-wife and then inexplicably shared with three other lawyers.
MLRPC 8.2(a) prohibits a
lawyer from making a statement concerning the qualifications or
integrity of a judge (or other legal officer) only if the lawyer makes
the statement with knowledge that it is false or with "reckless
disregard" as to its truth. The Restatement of the Law Governing Lawyers
reiterates that standard and elaborates its rationale:
Lawyers are specially situated to assess the official
performance of judges and other judicial and legal officers.
Accordingly, both constitutional law and sound social policy require
that lawyers have broad latitude in criticizing such officers. Under the
rule of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
and its progeny, judges and other public legal officers are "public
officials," so that an action by a judge or public legal officer against
a lawyer for damages for defamation would require a showing of actual
malice. Similar considerations should also lead to application of the
standard in New York Times v. Sullivan in lawyer-discipline cases.
Restatement (Third) of the Law Governing Lawyers §114, comment b (2000 & 2013 Supp.).
The Majority opinion finds that the "knowing or reckless" element is
satisfied in this case as a result of Mr. Frost's failure to participate
in the proceedings below and to respond to requests for admissions. In
other words, he is deemed to have admitted the intent element of the
violation, which, in the view of the Majority opinion, relieves us of
the need to consider the actual content and circumstances of his e-mail,
or the standard by which the statements in question should be judged.
Majority slip op. at pp. 13, 18-19 n.11.
Requests for admissions are typically used to obtain agreement as to
the genuineness of documents, the establishment of other foundational
facts necessary for the admission of evidence, or the truth of
uncontested facts, thereby streamlining the adjudication of a matter. See, e.g.,
P. Niemeyer & L. Schuett, Maryland Rules Commentary 336 (3d ed.
2004) ("Requests for admissions of fact serve a limited but useful
function. . . . The purpose of the rule is . . . to eliminate from trial
those matters over which the parties truly have no dispute"). While I
do not fault Bar Counsel, or any other litigant, for seeking to have an
opposing party concede the entire case through this discovery device,
requests for admission that concern the ultimate issue in a case are
generally not that useful and thus are not enforced. Id.
And when a request on an ultimate issue is "deemed" admitted, it may be
more accurately characterized as a default than a finding or holding on
the particular issue. Thus, the deemed violation of MLRPC 8.2(a)
is largely an echo of the violation of MLRPC 8.1(b) — the failure to
respond adequately to Bar Counsel's inquiry or to participate in the
proceedings below. Perhaps the peculiar facts of this case — or the
unusual way in which the ultimate issue has been determined — limit the
significance of the Court's holding. On the other hand, it may establish
an unfortunate precedent.
I suspect that few lawyers — or judges — have not, at some time,
uttered an unkind and undeserved criticism of a judge, an Attorney
General, a State's Attorney, or a Public Defender. No doubt there have
been occasions where an attorney, in the aftermath of an adverse ruling,
has commented on the parentage of the judge in a way that, even without
the benefit of a "deemed admission," is obviously and literally false,
but is essentially a statement of opinion rather than fact. Perhaps such
remarks are usually made to those who share the sentiment and, unlike
the instant case, do not generate a complaint. But whether there is a
violation of MLRPC 8.2(a) should not depend on the sympathies or sensitivities of the listener. In the end, the rule is aimed at intentional factual misstatements, not rude opinions.
The summary of case law in the Majority opinion is certainly accurate. I add four observations.
First, as the authors of the Restatement noted, civil liability for
criticism of a public official is limited to false statements made with
actual malice — i.e., knowledge of falsity or reckless disregard of falsity. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
In the context of critical remarks about judges, the Supreme Court has
stated that "only those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions." Garrison v. Louisiana, 379 U.S. 64, 74 (1964)
(reversing conviction of district attorney who stated that
"vacation-minded" judges sympathetic to racketeering interests were
responsible for court backlog and impeding vice investigations).
Second, the drafters of MLRPC 8.2(a) intended to incorporate the standards articulated in Garrison and New York Times in that rule. See American Bar Association, Model Rules of Professional Conduct, Proposed Final Draft (May 30, 1981) at 206 ("Rule 8.2 is consistent with that limitation [in New York Times and Garrison]"); M. Tarkington, The Truth be Damned: The First Amendment, Attorney Speech, and Judicial Reputation,
97 Geo. L.J. 1567, 1587 & n. 123 (2009). (As the Majority opinion
recounts, some courts have instead chosen not to apply the New York Times standard in favor of a less demanding, "objective" standard. Majority slip op. at p.19 n.11).
Third, the decisions of this Court under MLRPC 8.2(a)
that are relied upon by the Majority opinion all involved statements
alleging specific acts of misconduct rather than a general negative
characterization of the officials. See Attorney Grievance Comm'n v. McClain, 406 Md. 1, 956 A.2d 135 (2008)
(in appeal to circuit court, attorney alleged that District Court judge
had admitted personal bias against him and purported to "document" that
allegation with false statements about the content of the record); Attorney Grievance Comm'n v. DeMaio, 379 Md. 571, 842 A.2d 802 (2004) (attorney alleged, without factual basis, that judge had ex parte
contact with opposing party, had possibly received a "monetary benefit"
from that party, and had colluded to remove briefs from public record);
Attorney Grievance Comm'n v. Hermina, 379 Md. 503, 842 A.2d 762 (2004) (attorney accused judge of holding ex parte
jury instruction conference with opposing counsel in violation of the
Code of Judicial Conduct). In this case, only the statements concerning
Judge Harrington — i.e., that she allegedly arranged for deputy sheriffs to "illegally" arrest Mr. Frost — appear to go beyond derogatory adjectives.
Finally, discipline imposed by the judiciary that may appear designed
to shield judges from general statements of adverse opinions can itself
undermine confidence in the judiciary. See J. Dodd, The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N. Ky. L. Rev. 129, 144 (1988).
At this intersection of statements of fact and statements of opinion,
of protected speech and public officials, it is best to proceed with
caution. I would not impose discipline on the basis of a "deemed
admission" of the critical intent element. Rather, we should hold the
charges under MLRPC 8.2(a)
and 8.4(c) in abeyance. If Mr. Frost were suspended on the basis of the
other charged violations, and were later to satisfy the conditions for
readmission and cooperate with Bar Counsel's inquiry, I would remand the
matter to the hearing judge for further consideration of the remaining
charges. See Maryland Rule 16-759(c)(6). But I would not disbar under MLRPC 8.2(a) and 8.4(c) at this time on this record.
