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Wilson v. N.B.S.3/1/2000
Commission v. Kerpelman, 288 Md. 341, 379, cert. denied, 450 U.S. 970 (1980); Carter v. State, 73 Md. App. 437, 442 (1988); Md. Rules of Prof. Conduct, 8.4(d)("It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."). As we have indicated, under Maryland Rule 2-433(c), if the court grants a motion for failure to provide discovery under Rule 2-432, or a motion for protective order under Rule 2-403, or if it finds that a person has failed to comply with an order compelling discovery, it may sanction a lawyer who advised the failure to act by making an award of reasonable expenses, including attorney's fees. Before doing so, the court must afford the lawyer an opportunity to be heard. That requirement comports with due process. Talley v. Talley, 317 Md. 428, 434 (1989)(constitutional guarantee of due process - fair notice and opportunity for a hearing - applies to assessment of attorney's fees for litigation misconduct); Watson v. Watson, 73 Md. App. 483, 497 (1988).
We hold that the trial court's inherent authority to regulate the conduct of discovery permits it to order a lawyer who has advised his client not to comply with an examination ordered under Rule 2-423, and whose client has acted on that advice, to pay the expenses associated with the examination. The court may do so, however, only after giving the lawyer notice and an opportunity to be heard.
In this case, the court did not give Angel's lawyers an opportunity to be heard, though they requested a hearing several times, and it ordered them "and/or" their client to pay Dr. Gioia's "`no show' fee" without taking evidence on the question whether the lawyers advised Angel (or Ms. Allen) to disobey the order for examination, and without a finding on that critical issue. Although, as we have explained, the court was authorized, under Rule 2-423, to impose the cost of the examination on Angel, its decision to do so apparently was made in tandem with its decision to impose the cost of the examination on the lawyers as well. For that reason, we shall vacate the order in its entirety. On remand, the court may revisit the issue in light of this opinion.
ORDER OF OCTOBER 2, 1998 VACATED. JUDGMENT REVERSED AND CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEE.
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