Attorney Grievance Commission v. Pak

WILNER, J.,

which BELL, C.J., RAKER and GREENE, JJ., join.

I concur in the decision to disbar Ms. Pak, and, with one exception, I agree with the analysis set forth in the lead Opinion leading to that result. My only concern is with the treatment in that Opinion of the alleged violation of MRPC 5.5(a), which prohibits a lawyer from “practic[ing] law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” The lead Opinion would affirm a finding that Ms. Pak violated that Rule by (1) preparing a motion to be filed by her parents pro se in the U.S. District Court for the District of Maryland, and (2) subsequently filing in that court an answer to a complaint against her and a family trust, both at a time when she had not been formally admitted to the Bar of that court in conformance with Local Rule 701 of the court. I disagree with that conclusion.

*611 To the best of my knowledge, this Court has never before addressed whether an attorney who is a member in good standing of the Bar of this Court and who is therefore lawfully permitted to practice law in this State is in violation of MRPC 5.5(a) if he or she prepares or files pleadings or motions or otherwise appears in the U.S. District Court for the District of Maryland without having been formally admitted to the Bar of that court. This is an important issue.

One may start with the plain words of the Rule. MRPC 5.5(a), as noted, precludes a lawyer from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.... ” The lead Opinion bases its finding of violation on the simplistic premise that “Maryland’s courts and the United States District Court for the District of Maryland are jurisdictionally distinct” and that “[b]y her actions, respondent violated the legal practice rules of another jurisdiction.” Other than to discuss whether what Ms. Pak did constituted the practice of law, that is the extent of the analysis.

Obviously, the Federal courts are jurisdictionally distinct from the State courts, but I do not believe that MRPC 5.5(a) uses the term “jurisdiction” in that context. It speaks of practicing law “in a jurisdiction,” in violation of the regulation of the legal profession “in that jurisdiction.” (Emphasis added). That, to me, indicates a geographic context, not one of dual judicial sovereignty within the same State. The prohibition is against practicing law in another State (or District or territory, or perhaps even country, which, for simplicity, I will characterize as a State) in violation of the rules in that State. An unauthorized appearance as an attorney in a Federal court located in such a State would constitute a violation of Rule 5.5(a), but the violation would not be founded on the fact that the appearance was in a Federal court to which the attorney had not been admitted but on the fact that the appearance as counsel would constitute the practice of law in that State. The U.S. District Court for the District of Maryland, though not part of the Maryland judiciary, is not in a separate geographic enclave. It is in the State of Maryland, and Ms. *612 Pak was at all relevant times admitted to practice law “in that jurisdiction.”

To illustrate the point, Ms. Pak could have entered the Federal courthouse in Baltimore or Greenbelt and, subject to security and decorum constraints imposed by the court or the U.S. Marshals, sit in the lobby or other available space and draft pleadings or legal memoranda, consult with clients, negotiate settlements, and do a variety of other things that would constitute the practice of law. A lot of law is practiced in the corridors, lobbies, and rest rooms in the courthouse. None of that would violate MRPC 5.5(a), even if the conduct pertained to a case pending in the Federal court, because it all would have occurred in Maryland. She could not, however, have done the same thing in some other State where she was not admitted to practice. The Rule is plainly founded on geographic boundaries, which is implicit not only from its wording but from its deeper jurisdictional underpinning.

Subject to Federal Constitutional constraints, the regulation of the practice of law in the United States has long and generally been regarded as a State matter. The basic qualifications for admission to the Bar—graduation from an accredited law school, successful completion of a State-administered Bar examination, real proof of good moral character, and, in some States, completion of a professionalism course—are established by the legislative or judicial authorities of the respective State Governments, and it is the State judicial authority that determines whether those qualifications have been met. In most States, the State Supreme Court determines who may practice law in the State, which it does by formally admitting qualified candidates to practice within the geographic confines of that State. Ordinarily—and this is certainly true in Maryland—a lawyer admitted to practice by that court may not only practice in any of the courts of the State but may engage in the practice of law without ever setting foot in any courthouse.

Most, if not all, of the 94 U.S. District Courts in the country honor that State role by making any lawyer admitted to *613 practice by the highest court of the State in which the District Court is located eligible for admission to the Bar of that court. Many, indeed, like the District Court for the District of Maryland, make a lawyer admitted by the highest court of any State so eligible. With an important exception noted below, the additional requirements for admission to the Bar of a Federal court are generally rather minimal and mostly procedural. Although they tend to require that the attorney be familiar with Federal rules of civil and criminal procedure, the local rules of the court, and the Federal Rules of Evidence, they do not ordinarily require the successful completion of a Federal Bar examination or place any additional requirements on the nature or extent of the attorney’s legal education or experience. In that important sense, the Federal courts themselves recognize the primacy of the States in regulating the practice of law. 1

Until now, our jurisprudence under MRPC 5.5(a) has been limited to two categories of persons: (1) those who improperly practice law in Maryland without having been admitted to practice here by this Court, and (2) those who are admitted to practice in Maryland but improperly practice in another State without having been admitted by that State to do so. The two cases relied on in the lead Opinion—Attorney Grievance v. Velasquez, 380 Md. 651 , 846 A.2d 422 (2004) and Attorney Grievance v. Alsafty, 379 Md. 1 , 838 A.2d 1213 (2003)— involved one or the other of those situations. Velasquez was a Maryland attorney who was disciplined under MRPC 5.5 for unlawfully practicing in Virginia when he was not admitted to practice in that State. Alsafty was a New York attorney who practiced in Maryland when he was not admitted to do so. 2 *614 When we apply MRPC 5.5(a) in those manners, we implement our own role in regulating the practice of law in Maryland and gratify the legitimate role of our sister States in regulating the practice of law within their respective borders.

So far, the interplay with the Federal courts in the context of MRPC 5.5(a) has involved a converse situation. Following the pronouncement of the Supreme Court in Sperry v. Florida, 373 U.S. 379 , 83 S.Ct. 1322 , 10 L.Ed.2d 428 (1963), we have concluded that an attorney not admitted to practice law in Maryland does not violate MRPC 5.5 by practicing, even from a Maryland office, exclusively in Federal court or before a Federal agency, if, under Federal law or the rules of the Federal court, the lawyer is authorized to practice before that agency or court. See Attorney Grievance v. Bridges, 360 Md. 489 , 759 A.2d 233 (2000) but compare Attorney Grievance v. Harris-Smith, 356 Md. 72 , 737 A.2d 567 (1999) and c.f. Kennedy v. Bar Ass’n, 316 Md. 646 , 561 A.2d 200 (1989); Attorney Grievance v. Barneys, 370 Md. 566 , 805 A.2d 1040 (2002).

That precept is based on the Supremacy Clause—that a State may not, through a Rule such as MRPC 5.5, preclude a person from practicing before a Federal court or agency if Federal law permits the person to do so. It does not necessarily follow, however, at least under a Supremacy analysis, that MRPC 5.5 is violated when a lawyer admitted to practice in Maryland acts as counsel in the U.S. District Court here without having been admitted to that court’s Bar.

There have been but a few cases that have even tangentially dealt with the issue now before us, and they provide no enlightened analysis. In Office of Disciplinary Counsel v. Scuro, 36 Ohio St.3d 205 , 522 N.E.2d 572 (1988), an attorney admitted in Ohio applied for admission to practice before the *615 U.S. District Court for the Western District of Texas, which required as a condition of admission that the lawyer pass a Federal bar examination of some kind. The lawyer failed the examination and was therefore not admitted. Nonetheless, over a period of four years, he proceeded to represent about thirty clients before that court. When that was discovered, the District Court held the lawyer in contempt. That, in turn, led to a disciplinary proceeding in Ohio. In a one-paragraph per curiam opinion, the Ohio Supreme Court concluded that the lawyer’s conduct violated not only the Rules of the Federal court but also the Texas Code of Professional Responsibility and the Rules of the Texas Supreme Court governing the practice of law, and that it warranted a six month suspension. None of those rules were cited, and it is not clear from the summary opinion whether the violation was founded on Scuro’s unauthorized practice in the State of Texas or specifically on his appearance in the Federal court in that State.

In re Pryor, 864 So.2d 157 (La.2004) involved a Louisiana attorney who faced multiple charges, mostly involving lack of diligence and failure to cooperate with Disciplinary Counsel. One of the charges arose from the attorney’s representation of a client in a probation revocation matter in the U.S. District Court when he had not taken the necessary steps to be admitted to practice in that court. In regard to that issue, the hearing committee “observed that, although respondent may have engaged in the unauthorized practice of law in federal court, any violation was only technical in nature.” Other than mentioning the hearing committee’s conclusion, the court, itself, gave no further attention to the matter but suspended the attorney for the other violations.

In In re Schoeneman, 891 A.2d 279 (D.C.2006), an attorney whose license to practice law had been revoked in Virginia, his home State, and, on a reciprocal basis, was suspended in the District of Columbia and by the U.S. District Court in D.C., provided legal advice to and drafted pleadings for three clients with respect to matters before the U.S. District Court. The real gravamen of the charges ultimately brought against him involved the neglect of those clients and his failure to inform *616 them of his suspension, but he was also charged with a violation of Rule 5.5. The D.C. hearing committee and the Board on Professional Responsibility found no violation of that Rule, essentially on the ground that the services provided by Schoeneman during his suspension did not constitute the practice of law. The D.C. Court disagreed with that conclusion and held that the attorney’s conduct did constitute the practice of law, at a time when he “had been suspended from practice in every jurisdiction in which he had been admitted.” Id. at 281 . Schoeneman, in other words, was not authorized to practice at all, in any court located in the District of Columbia.

On this scant authority and given the actual wording of MRPC 5.5, it is a real stretch to construe that Rule as applying separately to practice in a Federal court, and it is not necessary for the purity and preservation of the legal profession to make that stretch. For one thing, our colleagues in the U.S. District Court are fully capable of dealing with attorneys who attempt to practice in their court without being properly admitted to do so. See U.S. District Court Local Rules 708-705. They do not need a strained construction of MRPC 5.5 for that purpose. Nor do we; there are other ways that this Court can deal with that situation.

In addition to the more routine qualifications common in the admission rules of many Federal courts, Local Rule 701 of the U.S. District Court for the District of Maryland requires, as a condition of admission to practice before that court, that the attorney be “willing, available and competent to accept appointments by the Court to represent indigent parties in civil cases in this District unless the acceptance of such appointments is inconsistent with an attorney’s professional employment obligations as, for example, a government attorney.” When an attorney knowingly proceeds to practice in that court without being admitted, and thereby seeks to escape the obligation of pro bono service that the court has made a condition of such admission, the attorney may well be in violation of MRPC 6.1(a), 6.2, and 8.4(d). MRPC 6.1(a) provides that a lawyer “has a professional responsibility to render pro bono publico legal service.” Rule 6.2 adds, even more *617 pointedly, that a lawyer “shall not seek to avoid appointment by a tribunal to represent a person except for good cause ...” Rule 8.4(d), of course, makes it professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

That approach, it seems to me, is a better way to address the problem, for it focuses on the deceptiveness of the lawyer and the effect of that deceptiveness on the lawyer’s obligations under Rules 6.1 and 6.2, rather than on a strained construction of the word “jurisdiction” in MRPC 5.5 and a blurring of the predominant role of the States in regulating the practice of law. In that latter regard, it also avoids the prospect of a lawyer duly admitted to practice by this Court facing criminal liability under Maryland Code, § 10-601 of the Bus. Occ. & Prof. Article for practicing in the Federal court without having been admitted under Local Rule 701. 3

For all of these reasons, I would not find a violation of MRPC 5.5. I am authorized to announce that Chief Judge Bell and Judges Raker and Greene join in this Opinion.

. It is certainly questionable from this construct whether the local rules governing the admission of lawyers to the Bar of the Federal courts can be said to constitute "the regulation of the legal profession," for purposes of MRPC 5.5(a).

. Alsafty practiced for a brief period in the U.S. District Court for the District of Maryland prior to his admission by that court, but the violation of MRPC 5.5 was based on his unauthorized practice in Maryland, which was extensive, not on his appearance in the Federal *614 court on behalf of indigent clients. The unauthorized Federal court activity was noted in rejecting Alsafty’s defense that, even though not admitted in Maryland, it was permissible for him to practice in Federal court. Obviously, that defense had no basis if he had not been admitted to practice in the Federal court.

. Section 10-601 provides that, "[ejxcept as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar.” Section 10—101(d) defines "Bar” as the Bar of this Court, "unless the context requires otherwise.” If this Court were to hold that practice in the U.S. District Court for the District of Maryland without being admitted to the Bar of that court constitutes the unauthorized practice of law under MRPC 5.5, the claim could be made that such practice constitutes the practice of law "in the State” without being "admitted to the Bar” in violation of § 10-601. Violation of that statute is a misdemeanor that carries a one-year jail sentence and a fine of $5,000. See § 10-606(a)(3).