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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
sion of 120 days and a probationary period under the tutelage of a capable lawyer with strong administrative skills would prove beneficial to the Respondent and her future clients."
II.
Both parties have filed exceptions to the findings and conclusion of the hearing judge. The hearing judge's findings of fact are prima facie correct and will not be disturbed unless clearly erroneous. Attorney Grievance v. Ellison, 384 Md. 688, 707, 867 A.2d 259, 270 (2005). When the findings are not clearly erroneous, exceptions will be overruled. Id. Our review is de novo as to the hearing judge's conclusions of law. Id.
A. Respondent's Exceptions
The Circuit Court found that respondent violated Rules 1.1 Competence, 1.2(a) Scope of Representation, 1.3 Diligence, 1.4 Communication, 1.7(b) Conflict of Interest, 1.16(a)(1) Withdrawal from Representation and 8.4(c) and (d) Misconduct. Respondent excepts to these findings.
Respondent's overarching defense before this Court, and underlying the most serious of her exceptions, is that she relied on the advice of counsel and that all charges should be dismissed. The hearing judge, noting that this Court has not addressed the applicability in attorney disciplinary proceedings of the affirmative defense of reliance on advice of counsel, began with the black letter proposition that all attorneys admitted to practice in Maryland are presumed to know the law, and concluded that such a defense is not available to an attorney in disciplinary actions. Determining that Maryland law does not allow for an affirmative defense of reliance on advice of counsel in attorney discipline matters, the hearing judge also found that respondent could not rely on the defense because the advice she relied upon was from "an attorney with no familiarity with the Maryland Rules of Professional Conduct and who is not admitted to practice law in Maryland."
The closest this Court has come to addressing reliance on advice of counsel as a defense in an attorney grievance case is in Attorney Griev. Com'n v. Gregory, 311 Md. 522, 536 A.2d 646 (1988), where the attorney argued that his misconduct should be excused because he acted in reliance upon a formal ethics opinion of the Committee on Ethics of the Maryland State Bar Association. Although this Court rejected Gregory's argument because he, in fact, was not relying upon an opinion that dealt with the circumstances of his misconduct, we went further and stated "that an opinion of the Ethics Committee of the Bar Association is advisory, and is not binding on this Court." Id. at 531-32, 536 A.2d at 651. We stated as follows:
"As a practical matter, however, where an attorney can demonstrate reasonable reliance upon an ethics opinion on point, that fact is likely to have a significant effect on the initial decision of the Attorney Grievance Commission concerning the filing of a complaint, as well as upon the determination or disposition of those charges that may be filed."
Id. Finally, we pointed out that this general principle may be modified by rule or statute, as is the case with Md. Rule 1231 creating a Judicial Ethics Committee, now encompassed within Md. Rule 16-813, which provides protection to a judge who complies with an opinion issued by that committee. Id. at 531 n.6, 536 A.2d at 651 n.6.
Maryland law does recognize the defense of reliance on the advice of counsel in some cases. See, e.g., Brashears v. Collison, 207 Md. 339, 349-51, 115 A.2d 289, 294-95 (1955). Relying on Brashears, the Court of Special Appeals, in VF Corp. v. Wrexham Aviation, 112 Md. App. 703, 686 A.2d 647 (1996), aff'd in part and rev'd in part, 350 Md. 693, 715 A.2d 188, held
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