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Attorney Grievance Commission v. Ellison2/4/2005
llison filed his motion pursuant to Rule 2-432 (b) (G). In his memorandum in support of the motion, Ellison argued that Strulson's complaint to the AGC was nothing more than a bill-collecting strategy using the AGC and Bar Counsel as a means to compel payment for his services. It was hypothecated that discovery likely would show Strulson's technique of bringing complaints against lawyers through Bar Counsel as a means to obtain payment of his billings. If so demonstrated, it was posited that this would reflect negatively upon Strulson's character and credibility in the present case.
Bar Counsel responded to Ellison's motion with its own motion in limine and request to limit the scope of discovery. In its motion, Bar Counsel noted that discovery of Strulson's extrinsic conduct was unrelated and irrelevant to Ellison's conduct regarding the Assignment and Moody's representation. Strulson's conduct, which was not subject to an investigation by Bar Counsel, was also not the subject of the petition in the present case. Furthermore, information relating to other Bar Counsel investigations initiated by Strulson's complaints, if any, would be confidential and generally protected from discovery by Rule 16-723 (b). The hearing judge refused to accord relief to Ellison.
Ellison relies on Attorney Grievance Comm'n v. Stolarz, 379 Md. 387, 842 A.2d 42 (2004) on this issue. We, however, did not part so broad a swath in the ocean of prohibited attorney conduct in Stolarz as Ellison conceives. First, Ellison points out that we stated in Stolarz that use of a grievance against an attorney as a means to collect a debt "is certainly not a legitimate or appropriate use of the grievance procedures of this state." Id. at 396, 842 A.2d at 46. Although we undeniably included those words in Stolarz, a review of that sentence fragment in context with the rest of the paragraph of which it was a part in that opinion reveals that we merely were restating the hearing judge's conclusions of law as he discussed Stolarz's argument as to why he threatened the complainant in that case with a defamation lawsuit:
Stolarz maintains that he believes the Complainant threatened to bring this action in an effort to collect his client's debt, which is certainly not a legitimate or appropriate use of the grievance procedures of this state. . . . Based upon the aforementioned reasons this Court [referring to the hearing judge] finds by clear and convincing evidence that Respondent did not act unreasonably in warning Complainant that a defamation claim would be asserted when he rationally believed that Complainant would defame him.
Id. at 396, 842 A.2d at 46-47. The hearing judge in that case ultimately concluded that Stolarz's warning of a defamation claim against the complainant did not rise to a violation of MRPC 8.4(d). Our actual holding was quite succinct and limited solely to Bar Counsel's exception to the hearing judge's conclusion regarding Bar Counsel's inability to prove by clear and convincing evidence a violation of MRPC 8.4(d); " his finding is not clearly erroneous based on the limited record in this case and we therefore decline to overrule it." Id. at 401, 842 A.2d at 50 (footnote omitted).
Ellison also claimed in his motion that he did not believe Strulson had a valid interest in the settlement proceeds and that, even if he did, the amount due was clearly in dispute. Under this theory, discovery might reveal that Strulson had used the AGC or other civil remedies to obtain payments for other "invalid" interests or "disputed" balances under assignments from other attorneys and their clients. Once again, Ellison relies incorrectly on Stolarz, this time employing it in an exercise in inve
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