Attorney Grievance v. Lee

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Attorney G rievance C ommissio n v. Lee, A G No. 8 , Sept. Term 2004. O pinion by H arrell, J. ATTORNEY GRIEVANCE - EVIDENCE - PEER REVIEW PROCESS - MD. RULE 16723 CONFIDENTIALITY - ADMISSIBILITY AT EVIDENTIARY HEARING OF STATEMENTS M ADE DURING TH E PEER REVIEW PROCESS ATTORNEY GRIEVANCE - EVIDENTIARY HEARING - NEWLY DISCOVERED EVIDENCE Statemen ts made by a participant at an attorney grievance Peer Review Panel proceeding, under Md. Rule 16-723, are confidential and privileged and may not be used at a subsequent evidentiary hearing in the attorney s case by either party for the purpose of impeaching the arguab ly inconsis tent testim ony of th e decla rant at th e evide ntiary hea ring. When, subsequent to the evid entiary hearing before a judge, a respondent attorney produces evidence that is material to a charge or charges, but was not introduced at trial, the Court of Appea ls possesses the discretion to remand the proceedings so that the new evidence may be con sidered . Circuit Co urt for Baltim ore Cou nty Case # 03-C-04-005400 IN THE COURT OF APPEALS OF MARYLAND Misc. D ocket A G No . 8 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION v. NORM AN JO SEPH L EE, III Bell, C.J. Raker Cathell Harrell Battaglia Greene Eldridge, John C. (retired, specially assigned), JJ. Opinion by Harrell, J. Raker, J., concurs Filed: May 12, 2005 Charges were filed by the Attorney G rievance Com mission, through Ba r Counsel, against Norman Jo seph Lee III, Esquire, arisin g from a c omplaint m ade by Ma ry Ellen Smith ( Mary Smith ) relating to the retention of Lee to pursue the release of her husband, John Henry Smith ( John Smith ), from a Maryland prison. After an evidentiary hearing on the allegations in the complaint, Lee was found by the hearing judge to have violated several rules of professional conduct. Lee argues in his exceptions to this Court that the fairness of his hearing was prejudiced because he was denied the ability to introduce, for the purpose of impeachment, the complainant s assertedly inconsistent statements made by her at the earlier Peer Review proceeding. Lee also argues that Bar Counsel presented testimony and made assertions during the evidentiary hearing that were dem onstrably false. Although we shall deny to Lee the ability to utilize at the evidentiary hearing any statements made during the Peer Review proceeding, we remand this matter so that the hearing judge may consider the proffered additional evidence, as identified in Lee s exceptions. I. John Smith, the complainant s husband, was con victed in 19 74 of tw o counts of first degree murder and two counts of arson after a trial by jury in the Circu it Court for C ecil Cou nty. On 6 December 1974, the trial court imposed two concurrent life sentences for the murder conviction s. For the tw o arson co nvictions, Sm ith was sen tenced to two, thirty year terms to run concurrently with each other, but consecutively to the life sentences. On 12 April 1976, the Court of Special Appeals reversed one of Smith s arson convictions on doub le jeopard y ground s. Smith v. Sta te, 31 Md. App. 106, 113-16, 355 A.2d 527, 532-33 (1976 ). The other arson conviction was vac ated on 5 O ctober 197 7 as the resu lt of a successful petition for po st-conviction relief filed by the Office o f the State P ublic Defender. Evidence admitted at Lee s evidentiary hearing in the present disciplinary case indicated that, during the period from 1977 to immediately prior to Smith s wife s solicitation of Lee s services, John Smith filed several additional petitions for post-conviction relief relevan t to the m urder c onvictio ns. All w ere den ied. At the evidentiary hearing on the charges in the present case, Lee testifie d that, because of his prior successes in securing post-conviction relief for a number of prisoners, he apparently became well known among the State s prison population as an attorney skilled in post-conviction matters. To assist him with an influx of additio nal post-conviction and other matters, Lee em ployed L ester V . Jones, a disbarred, former member of the Maryland Bar. Lee claimed that, although he deferred many of the research duties and other undertakings regarding John Smith s case to Jones, he supervised Jones s work and took steps to e nsure th at Jone s did no t engag e in the u nautho rized pr actice o f law. Lee explained that John Smith began calling his office from the Western Correctional Institute in Cum berland , Marylan d ( W CI ), so metim e in Jan uary 200 1, seeking Lee s advice and an assessment of Smith s hopes for release. On 3 March 2001, John Smith sent a cover letter and seve ral pages of case docu ments to Lee s of fice in Harfo rd County, addressed to 2 Jones, seeking Jones s assessment of possible post-conviction relief.1 The letter also requested Jones to inform John Smith of the cost, if he believed the case to be meritorious, of pursuin g his matter in court. On 21 April 2001, Mary Smith met with Jones at Lee s office in Bel Air, Maryland, to discuss her husband s case. Mary Smith brought to this meeting a portion of the $3500 retainer quoted by Lee and a box of documents and transcripts related to all aspects of her husband s original trial and subseque nt post-con viction proc eedings. S he testified at the evidentiary hearing in this case that she procu red these pa pers from the archiv es in Philad elphia. 2 Although Mary Smith initially testified that the box of documents contained the entire transcript of the original trial and the post conviction, she later temporized that she was not versed in the law and was unsure of which specific legal docume nts were in the box. Lee s view w as that, althoug h the box o f docum ents contain ed several p ostconviction transcripts, it did n ot contain tran scripts of John Sm ith s original 1974 trial. Mary Smith eventually delivered the balance of Lee s retainer in June 2001. 1 In his letter, John Smith inquired as to the legal m erit of a claim brought to his attention by a fellow inmate. The claim apparently rested on the contention that, because Smith s co-defendant had confessed to being the first degree principal and was thereafter sentenced to 25 years in prison, common law legal principles prevented John Smith, who claimed that he wa s not a first de gree princip al, from receiving a greater sentence than the first degree principal. Lee asserted, however, that his research indicated that John Smith indeed w as convicte d as a first deg ree principa l. 2 The record is obscure a s to why reco rds of M aryland State co urt proceed ings in Smith s criminal matters would (or could) be obtained f rom a Ph iladelphia, Pe nnsylvania repo sitor y. 3 On 28 November 2001, Jon es wrote to Mary Sm ith, stating in his correspondence that a draft Petition had been nearly completed, and that Jones would be forwarding the draft to both John and Mary Smith for their comment. Although Mary Smith testified that she received the 28 Novem ber 2001 letter, both she and her husband denied receiving the draft petition . Lee acknow ledged tha t, during the period between 28 November 2001 and late April 2002, Mary and John Sm ith made several calls to his office inquiring as to the status of the case. By the end of Apri l 2002, Le e maintaine d that he ha d conclud ed that ano ther postconviction petition would prove un successfu l. Despite this c onclusion , Lee testified that, in response to Mary Sm ith s concern s that Lee was not pursuing her husband s matter in a diligent manner, Lee sent letters to attorneys who had represented Smith and his co-defendant at their original trials in 1974 seeking the transcripts fro m those trials. Although these letters facially were cop ied to both John and Mary Smith, they denied receiving the copies. Lee was unsuccessful in obtaining the transcripts through the correspondence. Lee claimed that, at this point, he concluded that John Smith s best option for release from prison would be through the parole process. Then-Governor Parris N. Glendening, however, whose term of office would not end until January 2003, had an announced policy of refusing, under most circumstances, to consider the grant of parole for any inmate that was serving a life sentence. Aware of this life means life policy, Lee advised John Smith, by telephone, that his best hope for release was to wait until after the inauguration of the next 4 governor in 2003 to requ est a par ole hea ring. Although Lee testified that he communicated to John Smith the existence and crite ria of the Gov erno r s l ife m eans life policy, Lee also testified that, in early 2002, against his advice, John Smith requested that Lee imm ediately seek a parole hearing. In response to this request, he sent a letter on 29 April 2002 to the Maryland Parole Commission requesting a parole hearing, which subseque ntly was scheduled for sometime in June 2002. Again, although Lee testified that this letter was cop ied to both John and M ary Smith , they testified that they never received this correspondence. On 30 May 2002, howe ver, John Smith, acting on behalf of himself and without the knowledge of Lee, asked the parole hearing board to withdraw the request for a parole hearing.3 Lee claimed that, on 15 May 200 2, he sent a letter to John Sm ith, copied to Mary Smith, in which he stated that, as a result of conversations between himself and John Smith, he would proceed with preparation and filing of a Petition for a Writ of Error. Bar Counsel presented evidence, however, that neither John nor Mary Smith received this correspondence, and both testified that they were never made aware of, or saw, any work p roduct relatin g to a Petitio n for W rit of Er ror. Lee introduced evidence that, on 17 July 2002, Jones sent a letter to Mary Smith, copied to John Smith, in which Jones stated that his review of John Smith s materials and a 3 There was conflicting testimony at the evidentiary hearing in this case as to how John Smith became aware of the fact that he was scheduled for a parole hearing . Furthermore, although Lee presented testimony suggesting that he never was informed by WCI that the parole hearing request was withdrawn, an official from WCI testified that Lee never made any inquiries reg arding the s tatus of the p arole hearin g request. 5 discussion with a fellow inmate of Smith led him to the conclusion that he was comforta ble . . . that there was some ave nue of relief for John . . . , including but not limited to Motion to Correct Illegal Sentence, etc. Although Mary Smith admitted that she received this correspondence, Bar Counsel presented evidence that John Smith did not. Neither, however, testified that they received any work p roduct related to the actions prop osed in Jones s letter. 4 Sometime in late 2002, Jones entered the hospital to undergo what Lee characterized as a routin e opera tion. Although Lee expected Jones to return to his offices within a sho rt period, Jones experienced serious complications from the surgery and did not return to L ee s office. Jones, however, remained in the employ of Lee during the remainder of 2002, work ing at ho me du ring his r ecupe ration. During the period Jones w as working from home, Lee s secretary, Do lores Willis, would bring files to Jones s house for his review. In a memorandum to Lee, dated 11 December 2002, summ arizing the status of every open file under Jones s supervision, Jones offered research and general remarks concerning John Smith s case. The memorandum contained a review of John Smith s criminal and post-conviction history, and recommended that, based on the results of Jones s rese arch, Lee s hould pre pare a W rit of Revie w to Vacate Judgment. Jones s memorandum also advised Lee that then-Governo r-elect Robert 4 Despite conflicting te stimony as to w hether M ary Smith rece ived certain correspondence relating directly to her husband s matter, she did admit to receiving correspondence pertaining to at least two situations, un related to the p ursuit of a p ostconviction petition, in which Lee acted on John Smith s behalf in regard to prison-related issues. 6 L. Ehrlich, Jr. indicated he would consider parole requests on a case-by-case basis (abandoning the life means life policy of Governor G lendening) and theref ore Lee shou ld consider pursuing a parole hearing request for John Smith following Governor-elect Ehrlich s inauguration.5 Jones s memorandum encouraged Lee to call Mary Smith so that she could be updated with the information in the memorandum. Mary Smith testified that she did not have any communication with Lee until she called L ee in late Decem ber 2002 to request a m eeting to review the status of her husband s case. With Jones present, Lee met with Mary Smith on or about 9 January 2003. Mary Smith inquired as to the pro gress of L ee s researc h. Lee told Mary Smith that, in o rder to give h er a comp lete answer to her inquiries, he would need a month to re view the tra nscripts and other docu ments that she had delivered to his office in April 2001. Mary Smith agreed to Lee s request. Lee claimed that, in the days following their meeting, he spent 6.5 hours reviewing the transcripts.6 Approx imately two or three weeks after L ee met with M ary Smith, Lee claimed that John Smith called Lee from WCI and left a message instructing him to cease work o n his case and refund any unpaid portion of the retainer to Mary Smith. In response, Lee testified 5 Lee testified that, som etime later in D ecembe r 2002, he d ismissed Jo nes from his emp loyment d ue to concern s ove r Jon es s integ rity. 6 This testimony was corroborated by a client ledger, introduced into evidence by Lee, that contained detailed time reco rds documenting all work done by his office related to the Smith case. L ee, howe ver, testified that the entries on the client ledger were not made contemp oraneou sly with the work indicated, but rather were made subsequent to Mary Smith s complaint and in anticipation of the evidentiary hearing. 7 he stopped work. Ten days after Lee ceased work, Mary Smith called Lee and instructed him to ignore John Smith s message and resume work on her husband s case. Approximately two to three weeks after Mary Smith s call requesting him to resume work, ac cording to Lee s testim ony, Mary Smith called again, this time stating that she wanted all her files back and she wanted her entire retainer back and if she didn t get it, she was going to caus e probl ems. Contrary to Lee s version of events, Mary and John Smith testified that they had no knowledge of any telephone calls to L ee requ esting h im to sto p or resu me w ork. Although he placed approximately 188 collect telephone calls to Lee s office over the course of the relevant time period , John Sm ith testified that he never once spoke directly with Lee, instead always being dive rted to Jone s. Lee claim ed, how ever, that he h ad spoke n with Joh n Smith on several occasions and, although he may not have participated, he was present, listening on the office speakerphone, for several other conversations between Jones and John Smith. Mary Smith recalled that, after her meeting with Lee in early January, she made several unsucce ssful attemp ts to contact L ee. Six we eks after the meeting, and with no response from Lee, she emailed Lee and requested a return of her $3500 retainer and her papers. On 4 March 2003, Lee responded via email, stating that he was in the process of reviewing the transcripts but that, if Mary Smith desired, he would cease work, return the transcripts, and refund any unearned portion of the retainer. Lee testified, however, that Mary Smith was unwilling to accept anything less than a refund of the full retainer. Lee also testified that, despite Mary Smith s representations to the contrary, the transcripts were 8 available for her to p ick up at he r conven ience. M ary Smith filed the present c omplaint, dated 2 1 Apr il 2003 , with th e Attor ney Grie vance Com mission ( Com mission ). In her complaint, she accu sed Lee of being totally unfamiliar with her husban d s matter and failing to act diligently on her requests even though, for almost two years, according to her claims, Lee had all the w ritten materials th at he need ed to pursu e effective ly a post-conviction petition. Mary Smith also accused Le e of failing to commu nicate effectively with her and her husband by either ignoring their requests for information or stringing them along by making unsubstantiated promises regarding the progress being made on John Smith s case. In his written response, dated 20 June 2003, to the Commission regarding the complain t, Lee characterized M ary Smith s assertions as springing m ore from a fee dispute than his failure of diligence or communication. In summarizing his office s research and progress on the Smith case, Lee made the following representations: We attempted to secure transcripts of the proceedings in [the original trials of Smith and his co-defendant]; however, due to the many years sin ce these ca ses were trie d in the early 1970's, the transcripts w ere not ava ilable from either the Courts, the prosecuting attorneys, or the d efense atto rneys and Pu blic Defenders. Mrs. Smith did eventually provide a box full of transcripts, pleadings, Memorandums of Law, and voluminous research materials that John Henry Smith had used in his many appeals and Petitions for Post Conviction Relief. 9 Lee also stated tha t [f]rom M arch, 2001 until Septem ber, 2002, there was much correspondence to and from my office regarding [John Smith s case]. He explained, however, that once Jones entered the hospital there was not much progress made on the case. On 17 September 2003, Bar Counsel filed a Statement of Charges against Lee, advancing various violations of the Maryland Rules of Professional Conduct ( MRPC ). Pursuant to the Maryland Rules governing the attorney discipline process, a Peer Review Panel proceeding was held in late 2003 during which both Lee and Mary Smith gave inperson statements.7 When the Peer Review process failed to resolve the matter, the Commission, on 21 January 2004, directed Bar Cou nsel to file a Petition for Disciplinary Action against Lee. The petition was filed on 28 April 2004. The Petition for Discip linary Action alleged violations8 of M RPC 1.3 9 (diligence), MRPC 1.4 10 (communication), MRPC 1.5(a) 11 (fees), MRPC 1.16(d)12 (declining or 7 As explained more fully infra, the Peer R eview pr ocess, gov erned prim arily by Md. Rules 16-713, 16-723, 16-742, and 16-743, provides a confidential and informal opportun ity in which a panel composed of fellow attorneys and at least one lay person determines, based on statements or papers from the complainant(s), the respondent attorney, and any other persons the p anel chooses to he ar from, w heth er the ma tter c an be res olve d inf ormally or whether dismissal or further, formal disciplinary action should be recommended against the resp ondent a ttorn ey. 8 Prior to the hearing judge taking the case under advisement, Bar Counsel withdrew charges that Lee violated MRPC 1.1, 5.3, and 5.5. 9 MRPC 1 .3 states: Rule 1.3. Diligence. A lawyer shall ac t with reaso nable diligen ce and pro mptness in representing a client. 10 MRPC 1 .4 states: Rule 1.4. Communication. (contin ued...) 10 terminating representation), MRPC 8.1(a)13 (bar admission and disciplinary matters), and 10 (...continued) (a) A lawyer shall ke ep a client rea sonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall exp lain a matt er to the e xten t reas onably neces sary to permit the client to make informed decisions regarding the representation. 11 MRPC 1 .5(a) states: Rule 1.5. Fees. (a) A lawyer s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill re quis ite to perf orm the le gal service pr operly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclud e other employment by the law yer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the prof essional relatio nship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) wheth er the fee is f ixed or con tingent. 12 MRPC 1 .16(d) states: Rule 1 .16. De clining o r termin ating rep resenta tion. . . . (d) Upon termination of representation, a lawyer shall take steps to the extent reasonab ly practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for em ployment of other coun sel, surrendering papers and property to which the client is entitled and refun ding any adv ance paym ent of fee that has not b een earned. The lawyer may retain pape rs relating to the client to the extent permitted by other law. 13 MRPC 8 .1(a) states: Rule 8.1. Bar admission and disciplinary matters. (contin ued...) 11 MRPC 8.4(b), (c), (d)14 (misconduct). In his answer to the petition, Lee denied any miscond uct. A two day evidentiary hearing was held before Judge Vicki Ballou-Watts of the Circuit Court for Baltimore County on 8 and 13 October 2004. After hearing testimony from Lee, Mary Smith, John Smith, an official from WCI, and Lee s secretary, the hearing judge issued her Findings of Fact and Conclusions of Law on 29 November 2004. She found, by clear and convincing eviden ce, that Lee violated M RPC 1.3, 1.4(a), 8.1(a), and 8.4(c). Lee violated MRPC 1.3, she concluded , by failing to revie w person ally Smith s case materials for nearly two years; failing to forward to his clients the results of any research or draft documents, as promised in various correspondence; failing to manage properly his workload; and, failing to meet with or speak to John and Mary Smith for nearly a two year period. The hearing judge concluded that Lee vio lated MR PC 1.4(a ) by failing to respond to the Smiths requests for information, both written and made by telephone ; failing to forw ard the resu lts 13 (...continued) An applicant for admission o r reinstatement to the bar, or a lawyer in connec tion with a bar adm ission applica tion or in con nection w ith a disciplinary m atter, shall not: (a) kno wingly m ake a f alse state ment o f mater ial fact. . . . 14 MRPC 8.4(b), (c), and (d) state: Rule 8 .4. Mis condu ct. It is prof essiona l miscon duct fo r a lawye r to: . . . (b) commit a criminal act that reflects adversely on the la wyer s ho nesty, trusthworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) eng age in c onduc t that is pre judicial to the adm inistratio n of jus tice; . . . . 12 of any research or draft documents, as promised in various c orrespond ence; and , failing to respond to Mary Sm ith s repeated requests fo r the return of transcripts and papers for a period of three weeks. The judge also concluded that Lee violated [MRPC] 8.1(a) and 8.4(c) when he misrepresented to the Attorney Grievance Commission that the cause for delay in pursuing the legal matter for which h e was retain ed was d ue to the un availability of transcrip ts. Judge B allou-Wa tts, however, found no clear an d convinc ing eviden ce to support a conclusion that Lee violated MRPC 1.5(a) a nd 1.16 (d). Rather, she was persuaded by Lee s client ledger to conclude that there was not sufficient evidence from which to find that no appre ciable work had been performed. She stated that, although it was possible that Mary Smith ma y have been entitled to a refund of a portion of her retainer, there was insufficient evidence to accurately determine what portion of the fee was unearned. Lee filed several exceptions to the hearing judge s written Findings of Fact and Conclusions of Law, disputing several, if not most, of the factual findings. Lee also filed a Motion for Reconsideration Based on Fraud, Deceit and Misrepresentation, supported by alleged new evidence that was not introduced or con sidered at the evidentiary hearing, which he boldly alleged demonstrated that Bar Counse l deliberately had pres ente d fal se testimony. Lee also argued that the hearing judge precluded him from impeaching Bar Counsel s witness, Mary Smith, by improperly preventing him from introducing evidence of statements reportedly made by her at the Peer Review Panel meeting that supposedly were inconsistent with some of her statements made at the evidentiary hearing. Although Bar Counsel filed 13 a response to Lee s exceptions requesting that his exceptions be overruled, no exceptions were taken by bar counsel to the hearing judge s findings of fact or conc lusions of law . Bar Counsel seeks an indefinite suspension as the appropriate sanction for Lee s violations. II. Lee claims that h e was de nied impro perly the oppo rtunity to impeach Mary Smith s testimony by introducing statements ma de at the Peer Rev iew Panel procee ding that were alleged to be inconsistent with certain statements she made at the evidentiary hearing.15 15 Lee states that [c]omplainant, Mary Ellen Smith, also gave false testimony to the Court; however, Respondent was precluded from impeaching her testimony, based on [Bar Counsel s] argument to the court tha t ANYTHING said at the Peer Review Hearing was not relevant and could n ot be used for AN Y purpo se in the Circ uit Court trial. (E mphasis in original). He points to the following exchange between himself and Bar Counsel during Lee s recross-examination of Mary Smith: [Lee]: Miss Smith, at the peer review hearing you testified [Bar Counse l]: I m going to object. Under the rules governing attorney discipline all matters pertaining to what happens during peer review m eeting are co nfidential w ithout waiver. The Respondent has made reference to the proceeding but without particula rity. So I did not interpose an objectio n. But I w ould suggest that the confidentiality that the Court of Appeals has imposed upon peer review meetings is for a number of reasons but it is intractable and basically an unwaivable status of confidentiality. So any reference to her previous testimony or even what transpired through the proceeding is not even [sic] not admissible, but not even subject to discussion. The Court: Well, I don t know what was going to be asked but let me just ask this question of you. Suppose, for example, the witness gave testimony or gave statements at the peer review (contin ued...) 14 During his recross-examination of Mary Smith, Lee attempted to ask her about statements she allegedly made at the Peer Review Panel proceeding indicating that she had signed a written retainer agreement w ith him. Mary Smith stated at the evidentiary hearing that she did not recall sig ning or receivin g a retain er agree ment f rom L ee. A. The Peer Review process embodied in the current Maryland attorney grievance rules was fashioned in 200 1 out of the ashes of the elimination of the form er Inquiry Panel and 15 (...continued) hearing that Respondent believes are inconsistent with her testimony today. Are you telling me that because of the confiden tiality rule he can t question her about her prior inconsistent statements? [Bar Counsel]: Yes, Your Honor, I am. It is an unqualifie d rule that the Court adopted that it is totally confidential, can be used for no purpo ses. . . . [Lee]: Your honor, I can cut this. I will rephrase the question. The Co urt: All right. Although Lee claims in his motion and exceptions that he was precluded from presenting evidence regarding statements made by Mary Smith at the Peer Review Panel meeting, one reasonably could conclude from this exchange that Lee failed to preserve adequate ly his objection by acquiescing in Bar Counsel s construction of the con fidentiality rule and offering to rephrase his question to avoid implicating statements reputedly made at the Peer R eview pr oceeding . Indeed, w e could fin d in this record no ruling by the hearing judge adopting explicitly Bar Counse l s position with respect to the adm issibility of Mary Smith s prior sta temen ts. Because w e are remanding this ca se for further proceed ings for a different reason and thus it is possible this issue may arise anew then, we shall addres s this point now. 15 Review Board procedures. Under the former rules, if Bar Counsel believed that a complaint against an attorney was meritorious, he or she would refer that complaint to an Inquiry Panel and give notice to the attorney of the nature of the complaint. Former Md. Rule 16-706(a)(4) (2000). The Inquiry Panel hearing was a relatively formal investigatory tribunal in which three individuals, the majority of which were attorneys licensed to practice in Maryland, would hear testimony from witnesses, receive other evidence, and make formal findings of fact and recomm endations a s to wheth er a respon dent attorne y should be su bject to disciplinary sanctio ns. Id. 16-706(d); 16-706(c). Although not strictly governed by the formal rules of evidence, the Inquiry Panels were governed by a procedural scheme similar to a civil trial, allowing witnesses to be subpoenaed, depositions to be taken, and testimony to be tak en und er oath a nd tran scribed . Id. 16-706(d). If the Inquiry Panel determined that the responde nt attorney com mitted misc onduct, the panel could recommend that charges be filed agains t the resp onden t attorne y. Id. 16-70 6(d)(4) (a). If the Inquiry Panel recommended that charges be filed, the panel was required to state, in writing, the basis for the charges and file those reasons, its recommendations, and any evidence utilized at the Inquiry Panel hearing with Bar Counsel, who would then transmit those findings to the Review Board and the resp onden t attorne y. Id. 16-70 6(d)(4) (b). The function of the Review Board would be to review the findings of th e Inquiry Panel and either approve, modify, or reject the panel s recommendation, dismiss the 16 complain t, or remand for further p roceeding s in front of the Inquiry Panel. 16 Id. 16-707. If the Review Board agreed with an Inquiry Panel s recommendation that charges be filed, Bar Counsel would then file cha rges in the Court of Appeals, on behalf of the Commission, against the resp onden t attorne y. Id. 16-709. The Court would then designate a hearing judge, who w ould hold an evidentiary hearing similar to the hearings held under the current rules. Id. 16-710; Md. Rule 16-757. Under the former rules, the proceedings of the Inquiry Panel and the R eview Board were not open to the public. Former Md. Rule 16-708. The rules provided that, with certa in exceptions,17 the record of any complaint, investigation, and proceeding of the Inquiry Panel 16 The Review Board consisted of 18 members; 15 members were attorneys selected by the Board of Governors of the Maryland State Bar Association, Inc. ( MSBA ), with the remaining three being non-attorneys appointed by the Attorney Grievan ce Com mission, w ith the assis tance a nd inpu t of M SBA . Forme r Md. R ule 16- 705(d ) (2000 ). A majority of the members of the Review Board was required for a quorum, and the concurrence of not less than a majority of the members present was necessary to make a decision in a case. Id. 16707(a). 17 The substance of the these exception s demon strates that the g eneral con fidentiality rule in former Md.Rule 16-708 was less than absolute. In Attorney Grievance Commission v. Strathen, 287 M d. 111, 117-20, 411 A.2d 102, 105-07 (1980), the Court examined and interpreted the exception found in former M d. Rule 16 -708(b)(3) (embod ied at the time in former Md. Rule BV8(b)(3)), which provided that [a] judicial tribunal may request and receive any information that is relevant to the business of the tribunal. In Strathen, a woman who pre viously filed a complaint against an attorney that did not result in the filing of charges in th e Court of Appea ls subsequ ently brought a legal malpractice claim against the attorney. The attorney filed a motion for the production by the Commission of the transcript of the woman s testimony in front of the Inquiry Panel based on its purported relevance in the malpractice action. The Court held that the transcripts were disc overable because the trial court s need for the transcripts in the malpractice action was well within the plain language of the e xceptio n to con fidentia lity found in form er Rule 16-70 8. Strathen, (contin ued...) 17 or the Revie w Boa rd would be private and co nfiden tial. Id. Once charges were filed in the Court of Appeals, however, that confidentiality did not extend to any further proceedings, which were o pen to th e public . Id. B. In 1999 the Court of Appeals began the comprehensive process of revisiting the Maryland rules governing attorney grievance matters in order to address concerns that the process was inefficient and contained certain redundancies. Many members of the legal and judicial communities harbored concerns that the effectiveness of the attorney grievance process was impeded by the relatively sizable lengths of time that often transpired between the initial filing of a comp laint and the ultim ate disp osition b y this Cou rt. See 144th Report of the Standing Committee on Rules of Practice an d Procedure: H earings Before the C ourt of Appeals (9 Sep t. 1999) (on file at the Court of Appeals). The ma in sour ce of this d elay, it was believed, was the duplicative and redundant nature of a process that included two 17 (...continued) 287 Md. at 119, 411 A.2d at 107. In Attorney Grievance Commission v. A. S. Abell Co., 294 Md. 680, 68 7, 452 A.2d 656, 659 (1982), however, the Court narrowed the scope of another exception to the general rule of confidentiality. Although former Md. Rule 16-708(b)(2) (embodied at the time in former Md. Rule BV8(b)(2)) provided that the dispositions of complaints sent to the complainant were not confidential, the Court held that such dispositions could not be disclosed under t he M aryland P ublic In forma tion Ac t, codified at the time at Md. Code (1957, 1980 Repl. V ol.), Art. 76A, §§ 1-5. The Court held that this exception was esse ntially for the limited purpose of informing the complainant of the disposition of the complaint, but otherwis e was cloake d with t he con fidentia lity of thos e proce edings . Id. at 687, 452 A.2d at 659. 18 administrative tiers of relatively formal findings of fact; one by an Inquiry Panel and the other from the evidentiary hearing in front of a circuit cou rt judge. Id. In response to these concerns, the Court of Appeals, among other things, determined to eliminate the Inquiry Panel and Review Board and, in their place, create the Peer Review Panel process. The present attorney grievance process in place for the handling and resolution of the complaint against Lee, as under the former rules, begins when Bar Counsel receives a complaint and initiates an investigation of that complaint. Md. Rule 16-731. At the conclusion of the investigation, Bar Counsel may elect to make one of several recommendations to the Commission, including that the complaint be dismissed, that a Conditional Diversion Agreement18 be executed between Bar Counsel and the respondent attorney, that the respon dent attorne y be repriman ded, or that th e Comm ission file immedia tely a Petition for Disciplinary or Remedial Action . Id. 16-734. Unlike under the former rules, how ever, if Bar Counsel determines the complaint to be meritorious, he or she may, in lieu of the other options referenced above, elect to file with the Commission a 18 A Conditional Diversion Agreement is an agreement, voluntarily entered into by Bar Counsel and the respo ndent att orne y, that allows th e attorney to avo id disciplinary sanctions if he or she acknowledges that he or she engaged in conduct that constitutes professional miscond uct and ag rees to appr opriate remedial conditions, such as restitution, treatment of physical or mental conditions, specific legal education courses, and/or a public apology. Md. Rule 16-736. The Agreement must be appro ved by the C ommissio n, and ma y be revoked if the respondent attorney fails to comply with the Agreement or engages in further conduct that would constitu te profe ssional m iscond uct. Id. 19 Statement of Charges, 19 which then is se rved on the resp onden t attorne y. Id. 16-741; Former Rule 16-706(a)(4) (providing that, under the former rules, if Bar Counsel believed a complaint to be meritorious, he or she then wo uld refer the complaint to an Inquiry Panel and give notice to the responden t attorney). The Statement of Charges is a document that alleges specifically any perceived violations of professional misconduct or incapacity and contains a fair summary of the evidence uncovered by Bar Counsel during its investigation. Md. Rules 16-701(m); 16-741. With in 30 days of the filing o f a Statem ent of Ch arges, the C hair of the Peer Review Committee schedules a Peer Review Panel proceeding.20 Id. 16-742(a). 19 Md. Rule 16-741(a)(1) governs the circumstances under which Bar Counsel may file with the Commission a Statement of Charges: (a) Filing of Statement of Charges. (1) Upon completion of an investiga tion, Bar C ounsel sha ll file with the Commission a Stateme nt of Cha rges if Bar Counse l determines that: (A) the a ttorn ey either engaged in conduct constituting professional misconduct or is incapacitated; (B) the professional misconduct or the incapacity does not warrant an immedia te Petition for Disciplinary or Remedial Action; (C) a Cond itional Dive rsion Agr eement is e ither not appropriate under the circumstances or the parties were un able to agree on one; and (D) a reprimand is either not appropriate under the circumstances or (i) one was offered and rejected by the attor ney, or (ii) a proposed reprimand was disapproved by the Commission and Bar Counsel was directed to file a Statement of Charges. 20 Under the current ru les, the only action taken by Ba r Counse l that may result in a Peer Review Panel proceeding is the filing of a Statement of Charges. Nonetheless, although the Peer Review process was enacted as a safeguard for the respondent attorney, the attorney (contin ued...) 20 Like the Inquiry Panel hearings, the Peer Review process features a panel of at least three individuals, comprised of a majority of attorneys and at least one member being a nonattor ney, 21 that makes a preliminary determination as to whether formal charges should be filed agains t the resp onden t attorne y. Id. 16-743. Unlike the relative formality of the Inquiry Panel hearing, however, the Peer Review Panel proceeding is an informal, nonadversarial meeting designed to allow Bar Counsel, the respondent attorney, the complainant, and other invited persons to meet and discuss the issues presented in the complaint in an environment similar to a mediation proces s. Id. 16-743. The Peer Review Panel must allow Bar Counse l, the [respond ent] attorney, and each complainant to explain their positions and offer such supporting information as the Panel finds relevant. Id. 16-743(c). The Panel may, but need not, hear from any other person upon the request of either Bar Counsel or the responde nt. Id. The Panel is not governed by any formal rules of evidence, but must respect lawfu l privileg es. Id. The meeting is not recorded or transcribed. The purpose o f the Peer R eview P anel is not prin cipally to make recommendations as to the appropriateness of formal charges. The Committee Note to Md. Rule 16-743(a) provides a relatively complete description of the purpose of the Peer Review process: 20 (...continued) is not required to participate in a Peer Review Panel proceeding. Md. Rule 16-743(b)(2). If the Peer Review process is terminated due to the lack of cooperation by the respondent attor ney, however, the Commission may take any action that could be taken or recommended by the Pee r Revie w Pan el, including the filing of a Petition for Disciplinary or Remedial Action . Id. 21 Md. Rule 16 -742(b). 21 If a Peer Re view Pa nel conclu des that the c omplaint has a substantial basis indicating the need for some remedy, some behavioral or operational changes on the part of the lawyer, or some discipline short of suspension or disbarment, part of the peer review process can be an attempt through both evaluative and facilitative dialo gue, (A) to effectuate directly or suggest a mechanism for effecting an amicable resolution of the existing dispute between the lawyer and the comp lainant, and (B ) to encourage the lawyer to recognize any deficiencies on his or her part that led to the problem and take appropriate remedial steps to address those deficiencie s. The goa l, in this setting, is no t to punish or stigmatize the lawyer or to create a fear that any admission of deficiency will result in substantial harm, but rather to create an ambience for a constructive solution. The objective views of two fellow lawyers and a lay person, expressed in the form of advice and opin ion rather than in the form of adjudication, may assist the lawyer (and the complain ant) to retreat from confrontational positions and look at the prob lem m ore realis tically. If, however, after hea ring statements, the Panel determ ines that the Statement of Charges has a substantial basis and that there is reason to believe that the [responden t] attorney has com mitted prof essional m isconduc t or is incapacitated, the Panel may . . . make an appropriate recommendation to the Commission or . . . inf orm the pa rties of its determination and allow the attorney an opportunity to consider a reprimand or a Conditional Diversion Agreement. Id. 16-743(c)(2). The Panel is authorized to recommend to the Commission that either a Petition for Disciplinary or Remedial Action be filed, the Statement of Charges be dismissed, or that a Conditional Diversion Agreement or reprimand is appropriate. Id. 16-74 3(e). Althoug h the purp ose of the P anel proce eding is no t to generate 22 any formal f indings of fact, the Panel must accompany its recommendation with a brief explanatory statement. Id. Another major distinction between the Inquiry Panel hearing and the Peer Review Panel proceeding is the level of confidentiality that is imposed on the Peer Review Panel proceeding. Md. Rule 16-723(a) provides: (a) Confidentiality of peer review meetings. All persons present at a peer review meeting sh all maintain th e confide ntiality of all speech, writing , and conduct made as part of the meeting and may not disclose or be com pelled to disclose the speech, writing, or conduct in any judicial, administrative, or other proceeding. Speech, writing, or conduct that is confidential under this Rule is privileged and not subject to discovery, but information otherwise admissible or subject to discovery does not become inadmissib le or protected from disc losure solely by reas on of its use at the peer review meeting. This language was first proposed in a comprehensive revision to the rules governing attorney grievance matters drafted by a delegated two member working subcommittee of the Court comprised of Judge Alan M. Wilner and the author of this opinion. The subcommittee s draft revisions were delivered to the Court s Standing Committee on Rules of Practice and Procedure ( Rules Committee ) for its review and comments. At its 8 September 2000 meeting, the Rules Committee discussed two competing policies regarding the level of confidentiality that should apply to Peer Revie w pro ceedin gs. See Minutes of the Standing Comm ittee on Rules of Practice and Procedure, 15-18 (8 Sept. 2000). Some members of the Rules Committee expressed concerns that effectiveness and confidence in the process would be undermined if a respondent attorney could make false statements during 23 the Peer Review Panel proceeding without facing any direct or indirect adverse consequences. Id. at 16-17 . If a respondent attorney were to make false statements during the Peer Review proceedings, under this view, Bar Counsel would be unable to impeach a false statement later at the evidentiary hearing in front of a judge. To assuage th is concern, it was suggested tha t the proposed rule gov erning confidentiality include a prior inconsistent statement exception that would allow a respondent attorney to be impeached at any subsequent formal evidentiary hearing through the use of statements made at the Peer Review proceedings. Id. at 17. This exception, how ever, was not included in the Rules Com mittee s ultimate reco mmend ations to the C ourt. The Rules Committee recommended instead that the confidentiality language proposed by the Co urt s sub comm ittee be a dopted as part o f the pro posed rules. Id. at 18. Even though it interpreted the proposed confidentiality language to circumscribe Bar Counsel s ability to use a statement made during the Peer Review process for the purpose of impeaching a respondent attorney s testimony at a subsequent evidentiary hearing in the matter, the Rules Committee believed that complete confidentiality was essential to the overall purpo se of th e Peer R eview proces s. Id. at 16-18. E stablishing a Peer Review process that is informal and confidential would create, the Rules Committee reasoned, an environment in which a respondent attorney is encouraged to speak openly without the fear of direct ex posu re to pote ntial disciplin ary or other advers e conse quenc es. Id.; see Comm ittee Note to Rule 16-743(a) (stating that [t]he goal, in this setting, is not to punish 24 or stigmatize the lawyer or to create a fear that an y admissio n of deficienc y will result in substantial harm, but rather to create an ambience for a con structive solu tion (emp hasis added)). The recommendations of the Rules Committee were communicated back to the Court s subcommittee for its consideration. On 8 November 2000, the sub-committee presented its recommendations regarding the proposed revisions to the rules to the full C ourt. See 144th Report of the Standing Committee on Rules of Practice and Procedure: Hearings Before the Court of A ppeals (8 Nov. 20 00) (on file at the Court of Appeals). We stated that the confidentiality language in proposed Rule 16-723(a) reflected a pure policy issue favoring the complete confidentiality of the Peer Review proceedings. 22 The Court s subcommittee was of the opinion that, in order to encourage candor and openness in the Peer Review process, Bar Counsel sh ould be preclu ded from usin g any state men t mad e by a respondent attorney during the Peer R eview process for impeachment purposes at any subsequent evidentiary hearing in the matter. The subcommittee stated that this strict confiden tiality reflected not only an underlying policy judgment, but also the practical impact of the informal nature of the Peer Review proceedings. Because the Peer Review proceedings would not be recorded or transcribed, nor involve statements given under oath, 22 The Court s subcommittee also remarked that the langu age in prop osed M d. Rule 16-723(a) was intended to mirror the strict level of confidentiality imposed on the mediation process. See Md. Rule 17-109 (imposing near-absolute confidentiality on all persons present or participating in a mediation). 25 the subcommittee concluded that any attempt to prove what was said at those proceedings would be unnecessarily burdensome and po tentially un reliable. The language in proposed Md. Rule 16-723(a) was approved by the full Court on 30 November 2000, and the new rules, including those governing the Peer Review process, became effective on 1 July 2001. C. In the present case, Lee s ex ceptions and mo tion purport to raise the obverse of the specific concerns raised by the Court and the Rules Committee in considering and adopting Rule 16-7 23(a ); tha t is, w heth er a c omp laina nt s, rather than a r espo ndent att orne y s, statements made during the Peer Review process may be used to impeach a com plainant s later testimony at the evidentiary hearing in the matter. Lee s issue nonetheless implicates the same po licy concerns a s those con sidered by the C ourt and the Rules C ommittee. We believe that the language of Rule 16 -723(a) clea rly indicates that all state ments ma de at a Peer Review Panel proceeding, no matter who th e declarant is, remain confidential and privileged and thus unavailable for use to impeach the declarant as a witness at a subsequent evidentiary hearing in that disciplinary process. The purpose of the Peer Review process is to provide an open and frank environment in which the parties and c omplaina nt will feel co mfortable to put it all on the table in the hopes that they may be able to work, in an informal and cooperative matter, toward a mutually acceptable solution . This environment, however, is accomplished only by allowing both the respondent attorney and complainant the ability to make otherwise conciliatory or 26 potentially inculpatory statements in seeking a mutual solution, without the fear that those statements may be used against him or her at a later hearing. Although the confidentiality provision was intended facially as a safeguard for attor neys accused of misconduct, an unfortunate byproduct of that confidentiality, as highlighted by Le e s argum ent in this c ase, i s the poss ibility that a complainant cou ld undermine the process by using the Peer Review Panel proceeding to audition one version of the facts and later change his or her story to suit a different approach. Despite the common sense appeal of permitting use of statements made during the Peer Review process to expose later inconsistencies or intentional misrepresentations, we conclude that the better cou rse is to declaim, b orrowing and muta ting somew hat a curren tly popula r advertising slogan, what happens in Peer Review stays in Peer Review. The comprehensive and sweeping language of Md. Rule 16-723(a) reflects our conclusion that the Peer Review process will only be effective if all statements made at a Peer Review Panel meeting are insulated from sub sequent d isclosure in th e remaining stages of the attorney grievance process. A respondent attorney who anticipates or expects a complainant or other person will present false or inconsistent testimony at the evidentiary hearing does have, however, some ultimate protections. Once a Petition for Disciplinary or Remedial Action is filed, a respondent attorney is afforded all the discovery too ls that are ava ilable to litigants in a civil tria l, includi ng dep ositions . Md. Rule 16-756. Using these, a respondent attorney should be able to ascertain a potential witness s position or testimony, under oath, before the 27 evidentiary hearing, thu s freezing the depo nent s acco unt and en abling the attorney to prepare his or her case, irrespective of what may be recollected regarding what the person may have said at the Peer Review proceeding. If a deponent changes his or her story after being deposed, the respondent attorney has a potent and, more importantly, an a dmissible weapon to expose a less than truth ful witness or one w ith poor reca ll.23 In this case, however, Lee apparently chose not to depose Mary or John Smith. Furthermore, any concerns that a respondent attorney has been prejudiced by false statements made during the Peer Review process are ameliorated by the fact that the respondent attorney ultimately will ha ve the opp ortunity to confront the complainant, under oath, at a n evide ntiary hea ring. See Attorn ey Grieva nce Com m n v. H arris, 310 Md. 197, 202, 528 A.2 d 895, 89 7 (1987) (h olding that any irregularity in the proceedings before the Inquiry Panel and the R eview Board ordinarily will not amount to a denial of due process, as long as the lawyer is given notice and an opportunity to defend in a full and fair hearing 23 Lee s concern b ears some resemblan ce to Bar C ounsel s concern, voiced throughout the rules revision process, that a respondent attorney may be tempted to make false statements at the Peer Review Panel meeting because, if the Peer Review Pan el members believed the respondent attorney, the panel would recommend dismissal of the complaint and the disciplinary process most likely would end w ithout fu rther ac tion. See 144th Report of the Standing Committee on Rules of Practice and Procedure: Hearings Before the Court of Appea ls (8 Nov. 2000 ) (on file at the Court of A ppeals). Bar Co unsel stated th at, to prevent such abuse of the process, he may be forced, in certain situations, to subpoena and depose a respondent attorney before the Peer Review process so that the attorney s statem ents could be used later for impea chme nt at the P eer Re view P anel m eeting. Id.; see Md. Rule 16-732 (allowing the Chair of the Commission to authorize the issuance of an investigative subpoena if the subp oena is nece ssary to and in furtherance of an investigation being conducted by Bar C ounsel pursuant to R ule 16-731 . . . ). 28 following the institution o f disciplinary pro ceedings in this Court ); Attorney Grievance Comm n v. Stewart, 285 M d. 251, 259 , 401 A.2d 1026, 10 30 (1979 ); c.f. Bd. of Physician Quality Assurance v. Levitsky, 353 Md. 188, 205-07, 725 A.2d 1027, 1035-37 (1999) (finding that irregularities in the Peer Review process governing physicians may not serve as the basis fo r overturnin g a decisio n made by the Board of Physician Quality Assurance after a full evidentiary hearing in front of a n administrative law judg e). III. In his motion, Lee also alleges that the fairness of his evidentiary hearing was prejudiced because Bar Counsel introduced, and the hearing judge relied upon, evidence and testimony that was p atently and dem onstrably false. At the eviden tiary hearing, Joh n Smith testified that he did not receive his copy of Lee s 29 April 200 2 letter to the M aryland Parole Commission requesting a parole hearing. Although Jo hn Smith did not testify dire ctly whether he received any other correspondence from Lee s office, Bar Counsel made remarks to the hearing judge suggesting that John Smith never received any correspondence from Lee s office. These remarks came during recross-examination of Lee by Bar Counsel concerning a visit by Lee to John Smith at WCI in January 2004. The following exchange occurred in this regard: [Bar Counsel]: Are you aware that [W CI] keeps precise records of not on ly lawyer visits, but leg al mail? Lee: No , I m not aw are of that. 29 [Bar Counsel]: So that when you went to the institution and signed in, that s memorialized in their computer data bank? Lee: W ell, it wouldn t surprise me a bit. [Bar Counsel]: Would it surprise you a bit that when I was . . . up there last M onday, I had them check, and the only lawyer visit from N orman Jo seph Lee was Janu ary 11th, 2004? Lee : Ok ay. [Bar Counsel]: And that there was no legal mail logged into the mailroom for John Henry Smith from 2001 to 2004 from Norman Joseph Lee? Lee: I a bsolute ly find tha t unbelie vable. In his motion, Lee states that, subsequent to the evidentiary hearing, he discovered, through his investigato ry efforts, that the m ail records fro m WC I demon strate that John Smith did receive several pieces of correspondence from Lee s office. These records, included with Lee s motion, ind icate facially that, within days of each date in dicated on all of the pieces of correspondence that Lee testified were sent to John Smith, John Smith signed for legal mail in the legal log book ma intained by W CI. This ev idence m ay draw into question John Smith s testimony, and would be contrary to the apparent representations made by Assistant Bar Counsel that the records at WCI showed no legal mail received by John Smith.24 24 In his motion , Lee also alle ges that the A ssistant Bar C ounsel no t only p resented false testimony, but knew that the testimony was false when he presented it. In his motion, Lee stated th at Assistant B ar Coun sel: (contin ued...) 30 When, subsequent to the evidentiary hearing before a judge, a respondent attorney produces proffered new evidence that may be material to the matter, but was not introduced at the hearing, the Court of Appeals possesses the discretion to remand the proceedings so that the new evidence may be offered and, if admitted, considered by the hearing judge. Bar Counsel contends that, even if the hearing judge had considered and believed the new evidence demonstrating that John Smith did receive the correspondence as recounted by Lee in his motion, there would remain evidence sufficient in the record to sustain each of the hearing judge s conclusions that L ee violated MR PC1.3, 1.4(a), 8.1(a) and 8.4(c ).25 Lee, 24 (...continued) misrepresented [the fact of whether John Smith had received any correspondence from Lee s office] to the Court during trial. If [Bar Counsel] had , in fact, check ed the logs d uring his visit to prep John H enry Sm ith for tria l . . ., then he KNE W his witness was testifying f alsely. Conve rsely, if he did not check the logs as he sta ted, [Bar C ounsel] m isrepresente d to the Court that he had done so. Either way, [Bar Co unsel] deliberately misled the Court by misrepresenting the nature and content of the logs, by falsely assertin g persona l knowled ge of fac ts in issue, an d/or by as sisting h is witne ss to testif y falsely. (Empha sis in original) In his response to Lee s exceptions, Assistant Bar Counsel explained that he had a good faith basis for making the inquiry as stated. He stated that, when he went to WCI to interview John Smith in preparation for the evidentiary hearing, he made an inquiry of the guard in charge of admission to the facility as to how to determine whether a particular inmate had received legal mail. Although the WCI guard provided accurate information regarding the number of recent visits by Lee to WCI, Bar Counsel stated that the guard, after communicating with the custod ian of th e lega l log bo ok, informed Bar Counsel that the log reflected no legal mail from Lee s office. 25 Bar Counse l also argues that Lee s motion was not timely filed with the hearing judge and attempts to introduce evidence well past the time within wh ich the disciplinary (contin ued...) 31 however, argues that this evide nce, and its implications on the ove rall credibility assessm ents of Lee and Bar Counsel s witnesses, are potentially material to the each of the court s underlying findings of fact and resultant conclusions. We shall remand this matter to the hearing judge so that this evidence may be considered, if admitted. 25 (...continued) matter was required to have been completed at trial. Petitioner s Response to Resp ondent s Exceptions at 8. Bar Counsel cites Md. Rule 16-757(a), which provides: (a) Generally. The hearing of a disciplinary or remedial action is governed by the rules of eviden ce and pro cedure ap plicable to a court trial in a civil action tried in a circuit court. Unless extended by the Court of Appeals, the hearing shall be completed within 120 days after service on the respondent of the order designating a judge. Before the conclusion of the hearing, the judge may permit any complainant to testify, subject to cross-examination, regarding the effect of the alleged miscond uct. A respondent attorney may offer, or the judge may inquire regarding, evidence otherwise admissible of any remedial action undertaken relevant to the allegations. Bar Counsel may respond to any evidence of remedial action. We assume, therefore, in his argument that Lee s motion was not timely filed, Bar Counsel relies on the rule of civil procedu re embodied in M d. Rule 2-535(c), which provides that a party may move fo r a new trial b ased on n ewly discov ered evide nce only if that m otion is filed within 30 days after entry of judgmen t. Lee s motion, however, w as filed in this Court on 11 January 2005, mo re than 30 days after the filing of the hearing judge s Findings of Fact and Conclusions of Law. The short response to this argument is that this Court has original jurisdiction over all m atters of attorney d iscipline . Attorney Grievance Comm n v. Christopher, 383 Md. 624, 638, 861 A.2d 692, 700 (2004) (citations omitted). Although the rules of evidence applicable to civil litigation are applicable to the eviden tiary hearing in attorney grievance cases, we reserve the right to order further proceedings following the filing of findings of fact and conclusions of law as justice may require from our review of what is before us. 32 For example, the hearing judge found that Lee committed violations of MRPC 1.3 by failing to personally review the case materials for over two years; failing to forward the results of any research or draft documents, as promised in various correspondence; failing to manage properly his workload; and, failing to meet with or speak to John and Mary Sm ith for nearly a two year period. The proffered new evidence, however, may draw into question John Smith s credibility on several aspects of this case, most notably the extent of any communication between him and Lee. In concluding that Lee failed to review the case materials or com munic ate eff ectively w ith John Smith, the hearing judge may have discounted (and likely did discount), in favor of John Smith s testimony to the co ntrary, Lee s testimony that he was fam iliar, through his own personal research, with John Smith s matter and had particip ated in conversations with him on several occasions. In concluding that Lee failed to manage properly John Smith s case and forward the results of his research, the hearing judge may have disbelieved, to a greater or lesser degree, Lee s testimony that he regu larly k ept John Smith inform ed, b y telephone, of Lee s progress and recommendations regarding the strategy best suited to the case.26 With regard to the violations of MRPC 1.4(a), the hearing judge found that Lee failed to respond to the Smiths requests for information, both written and made by telephone; failed to forward the results of any research or draft documents, as promised in various 26 Lee claimed that, in response to inquiries by John Smith as to certain motions mentioned in correspondence, he communicated the results of his research to Smith and his conclusions that such a motion would be fruitless. 33 correspondence; and, failed to respond to Mary Sm ith s repeated requests for the return of transcripts and pape rs for a perio d of three w eeks. The first two find ings sugg est that the judge did not find Lee s testimony cred ible as to the f requency an d content o f his communications with M ary and Jo hn Sm ith. The proffe red new eviden ce, howev er, if admitted and found credible, bears directly on John Smith s cre dibility regarding h is testimony concerning the level of communication between himself and Lee. Lee s evidence, in turn, reflects positively on his ow n credibility, includ ing with reg ard to the ev ents surrounding Mary Sm ith s termination of representation and her attempts to obtain the transcrip ts. Finally, the hearing court concluded that Lee violated [MRPC] 8.1(a) and 8.4(c) when he misrepresented to the Attorn ey Grievanc e Comm ission that the c ause for d elay in pursuing the legal matter for which he was retained was due to the unavailability of transcrip ts. At the evidentiary hearing, there was conflicting testimony from Lee and Mary Smith as to precisely what documents were contained in the box that Mary Sm ith brought to Lee s office in April 2001. The judge s finding that Lee was misleading about his access to the necessary trans cripts appea rs to rest, to some degree, on the hearing judge s rejection of Lee s testimony at the evidentiary hearing that the box of d ocumen ts that Mary S mith brought to Lee s office did not contain the transcripts needed to pursue an effective p ostconvic tion peti tion. 34 The hearing judge also concluded that Lee violated MRPC 8.1(a) and 8.4(c) by making a material misrepresentation when he state d tha t [M ary Sm ith] even tuall y delivered a box full of transcripts, pleadings, Memorandums of Law and voluminous research materials falsely implying that these documents were delivered to his office much later than April 21, 2001. The judge stated that Lee knew this statement was a misrepresentation because he had acknowledged receipt of the same documents in his May 4, 2001 letter to Mr. Sm ith. Lee claim ed, how ever, that it was his best recollection that, in addition to her delivery of a box of d ocumen ts in April 20 01, Mar y Smith also b rought to his office more d ocum ents late r in June 2001. Each of the hearing judge s conclusions of a violation of the MRPC represents, to one degree or another, a rejection of Lee s testimony in favor of the testimony of either John or Mary Smith. Although the proffered potential evidence of John Smith s receipt of certain correspondence may not be d irectly relevant to all o f these viola tions, if this evidence is received, it bolsters the cred ibilit y of Lee s previously rendered testimony. When new evidence that reflects materially and positively on the veracity of the attorney s earlier testimony is brought to the Court s attention subsequent to the evidentiary hearing, we reserve the right to remand the case so that the hearing judge may consider properly whether to admit that ev idence an d, if so, wha t effect it has on the credibility assessm ents previously made and conc lusions draw n. This is esp ecially true, in cases such as the present one, where the findings of fact and conclusions of law depend heavily on the determination of the 35 credibility of two or more material witnesses with directly contrary accounts of material events. CASE REMANDED TO THE HEARING JUDGE OF THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. RESULT. 36 COSTS TO ABIDE THE Circuit Co urt for Baltim ore Cou nty Case # 03-C-04-005400 IN THE COURT OF A PPEALS OF MARYLAND Misc. D ocket A G No . 8 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION v. NORM AN JO SEPH L EE, III Bell, C.J. Raker Cathell Harrell Battaglia Greene Eldridge, John C. (retired, sp ecially assigned), JJ. Concurring Opinion by Raker, J. Filed: May 12, 2005 Raker, J., concurring: I would hold that an inconsistent statement may not be used as substantive evidence, but, in order to prevent perjury and to protect the integrity of the judicial process, that a prior inconsistent statement may be used for impea chme nt purp oses. Cf. Ha rris v. N ew Yo rk, 401 U.S. 222, 226, 91 S. Ct. 643, 646, 28 L. Ed. 2d 1 (1971) (permitting criminal defendant s credibility to be impeach ed by use of prio r inconsistent statement and holding that [t]he shield prov ided by Miranda cann ot be perv erted into a lice nse to use perjury by way o f a defense, free from the risk of confrontation w ith prior inconsistent utterances ). Although confiden tiality is important in peer review proceedings, it is not always sacrosanct and must yield to the right of an attorney to defend h im or herself in these mo st serious of disciplinary proceedings. Cf. Penn sylvania v R itchie, 480 U .S. 39, 61, 107 S. Ct. 989, 1003, 94 L. Ed. 2d 40 (1987) (holding that a defendant s due process right entitled him to know whether protective services confidential file on the alleged abuse of his daughter contained information that may have changed the outcome of his trial had it been disclo sed); Davis v Alaska, 415 U.S. 308, 319, 94 S. Ct. 1105 , 1112, 39 L . Ed. 2d 34 7 (1974) (h olding that a defendant s right to juven ile records to im peach the credibility of the State s witness outweighed the State s interest in maintaining the confidentiality of such records). I concur in the judgment of the Court remandin g this matter f or further h earings in the Circuit Court. I disagree, however, with the Court s holding that all statements made at a Peer Review Panel remain totally confiden tial and privileg ed and, the refore, are u navailable for use to impeach a witness as a prior inconsistent statement a t a subsequent evidentiary hearing in that disciplinary process. I do not find that the plain re ading of th e Rule requires the conclusion that all statements, no matter who the declarant is, be unavailab le for use to impeach a witness against an attorney at a s ubseque nt disciplinary he aring again st that attorney. W hile the laudatory purpose of the Rule is to promote candor and an open and frank environment, the purpose cannot be to pr otect fa lse statem ents. See Hernandez v State, 52 P.3d 765, 768-69 (Ariz. 2002) (en banc) (holding that inconsistent statements made during confidential compromise negotiations are admissible at a subsequent hearing for impeachment purposes because excluding impeachment evidence would not further the policy of encouraging complete candor); 23 Charles A lan Wrigh t & Kenn eth W . Graha m, Jr., Federal Practice & Procedure § 5314 (1980) (stating that [t]he purpose of [Federal] Rule 408 [ precluding use of statements made during compromise negotiations] is to foster complete candor between the parties, not to protect false representations ); see also Lynne H . Ramb o, Impeaching Lying Parties with Their Statements During Negotiation: Demysticizing the Public Policy Rationale Behind Evidence Rule 408 and the Mediation-privilege Statutes, 75 Wash. L. Rev. 1037 (2000) (po stulating that reliance on the public policy rationale to preclude impeachment protects only dishonest parties and proposing a qualified approach to a llow impeachm ent). 2

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