Maryland Supreme Court Reiterates Duty to Cooperate in Decision Suspending Attorney

The decision in Attorney Grievance Comm’n. of Md. v. Sloane, __ Md. __ (Mar. 2, 2023), covers many issues.  The respondent attorney was suspended from the practice of law in Maryland with the right to apply for reinstatement after six months.  Much of the sanction was due to discovery misconduct in a contentious family law case. The Supreme Court’s opinion recites incivility and dishonesty.  Depositions reached the point where a Circuit Court Judge “ordered that depositions take place at the courthouse in case court intervention was required.”  The decision fills 46 pages and this blog does not cover all of it.

The Supreme Court squarely reiterated that there is a duty to cooperate and wrote:

Discovery is a taxing experience for attorneys and their clients. At times, personalities clash, which may permeate litigation through frivolous motions and vexatious arguments, as Respondent has participated in here. This behavior is caustic to the legal profession and particularly dangerous to the public when attorneys fail to recognize their misconduct.

One important holding was under Maryland Attorney’s Rule of Professional Conduct 19-303.2.  That Rule states that “[a]n attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client.”  The Rule is violated where an attorney’s delays did little to advance the client’s position.  Here, frivolous motions, obstruction of depositions, and failure “to cooperate during discovery” sufficed to support a violation. [emphasis added].  The “completely scrambled” and deficient discovery responses, speaking objections, and “refusing to cooperate with [opposing counsel],” operated to hinder and delay the litigation without any substantive purpose.  Breach of the duty to cooperate supported a violation of MARPC 19-303.2.[1]

Another important holding was that “frivolous objections” that “standard form interrogatories” were “unduly burdensome” and “overly broad” were violative of Maryland Attorney’s Rule of Professional Conduct 19-303.4 (an attorney shall not “fail to make a reasonably diligent effort to comply with a legally proper discovery request….”).[2]

The Court also addressed jumbling produced documents in a response to a request for production of documents.[3]  “The hearing judge found that Respondent’s document production on June 15, 2018 was in a ‘state of disorganization’ because it was missing documents and labels.”  In fact, the propounding party testified that it “was a document dump… just completely scrambled….”  That had ethical implications.

The Court also addressed Rule 2-431, holding that Respondent’s premature efforts failed to comply.  That Rule requires a “good faith” conference to resolve a discovery dispute before a motion to compel is filed.  The Respondent claimed that he had good faith conferences; however, they were on dates before the opponent’s discovery responses were due.  The Supreme Court wrote:

Respondent’s efforts to resolve the alleged discovery dispute in his August 9, 2018 and September 6, 2018 motions occurred while Ms. Miliman still had time to respond. Therefore, … there was no discovery dispute to resolve and any “efforts” to do so during that time were premature.

As to civility, the Court wrote: “Respondent’s toxic behavior towards [opposing counsel] eventually forced her to restrict their communications to writing.”

The Supreme Court’s decision provides a textbook description of how not to conduct discovery.

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[1] The history of the duty to cooperate was discussed in Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.  It was recognized in a 1941 Maryland law review article, id.,  as well as Rodriguez v. Clarke, 400 Md. 39, 60 (2007)(if a party fails to cooperate in providing access to discovery information, Rule 2-433 authorizes sanctions), and the landmark case of Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. 2008).

[2] Respondent made 277 objections in deposition “largely without a ‘discernable basis’….”

[3] See generally Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process?