On Report and Recommendation of the Board on Professional Responsibility
Before Rogers, Chief Judge and Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
Respondent was suspended, for a period of ninety days, from the practice of law by the Court of Appeals of Maryland upon a finding that he had engaged in in-person solicitation of potential clients in the hallways of the District Court of Maryland in Montgomery County, and so violated Maryland disciplinary rules providing -- as summarized by the Court of Appeals -- that "a lawyer shall not recommend employment of himself to one who has not sought his advice, nor accept employment following such recommendation." Attorney Grievance Comm'n v. Gregory, 311 Md. 522, , 536 A.2d 646, 649 (1988), citing DR 2-103(B) & (F), Maryland Code of Professional Responsibility. The matter is before us in a reciprocal discipline proceeding. D.C. Bar R. XI, § 11 (1989). The Board on Professional Responsibility (the Board) determined that, in light of material differences between Maryland's disciplinary rule DR 2-103 (B) and the corresponding DR 2-103 (B) in the District of Columbia, the latter would not provide a basis on which "to proceed de novo against Respondent for his misconduct in Maryland," and accordingly was not a basis for the imposition of reciprocal discipline.
At the same time, however, the Board went on to consider this jurisdiction's disciplinary rule DR 2-103(E), which provides in relevant part:
No lawyer . . . shall solicit . . . any person for purposes of representing him or her in any present or future Superior Court case in the District of Columbia Courthouse, on the sidewalks on the North, South and West sides of the Courthouse, or within 50 feet of the building on the East side.
The Board reasoned: "it is clear that in substance Respondent's misconduct in Maryland is also misconduct here, because if Respondent had conducted in the hallways of the Superior Court the identical type of in-person solicitations that he made in the hallways of the District Court in Maryland, he would have violated DR 2-103(E) of the D.C. Code of Professional Responsibility" (emphasis by Board). Accordingly, the Board concluded that "this case raises the question whether, in a reciprocal discipline case, the provisions of D.C. Bar R. XI, § 18(5)(e) *fn1 should be construed in manner that gives effect to the substance of the prohibitions in DR 2-103 (E)" (emphasis by Board). In what we shall treat as a recommendation, the Board declared that this. court "would be justified, as the promulgating authority, to interpret D.C. Bar R. XI, 18(5)(1) and DR 2-103(E) in a manner that permits the imposition of reciprocal discipline on the record in this case."
For the reasons that follow, we decline to accept the Board's recommendation to construe DR 2-103(E) as "in substance" violated by respondent's conduct. On the other hand, we find that the Board may have overlooked the application of DR 2-103(A)(3) to respondent's behavior, and thus we shall return the matter to the Board for it to consider the application of that rule in light of the Discussion in part C, infra.
As found by the Maryland Court of Appeals, at various times in 1984 and 1985, respondent attended criminal proceedings in the District Court of Maryland in Montgomery County. After the presiding Judge had advised a criminal defendant of the charges against him, of the maximum possible penalties upon conviction, and of his right to and the importance of counsel, respondent took one of two paths. One was to mail to the criminal defendant a form letter which in substance solicited the defendant's business. The second, or in-person, approach was described by the Maryland Court of Appeals as follows:
Respondent's in-person approach was to follow a defendant from the courtroom, speak to him, and hand him a copy of the form letter. According to a witness who observed this practice on two occasions, the conversation between Respondent and a defendant lasted from one to two minutes. According to Respondent, his ordinary conversation consisted of the following:
Here's a letter about my services. If you're interested call me. . . . Something came up about -- and I reviewed the Ethics Committee findings that you can give out brochures and I found that on a couple of occasions I might have been a little bit beyond -- nothing should you say to them that even could be construed -- and the few occasions people pressed me for my fees and I'd give them an idea of what the fee might be. Since then, when a person asks me that, I tell them Maryland is very strict on what can go on and I cannot discuss it and I'm not trying to be evasive but I can't discuss it. If you're interested call me and I'll discuss everything with you, talking about fees and so forth. *fn2 311 Md. at , 536 A.2d at 648-49 (footnote omitted). For purposes of the Maryland proceeding, the Court of Appeals "accepted Respondent's version of what ordinarily occurred when he spoke with defendants following their exit from the courtroom." Id. at , 536 A.2d at 649.
The Court of Appeals did not decide whether respondent's target mailings constituted a violation of the Maryland Code of Professional Responsibility or were protected by constitutional provisions on free speech. Instead, the Court of Appeals found that respondent, by his in-person solicitations in the courthouse hallways, violated DR 2-103(B) and (F) of the Maryland Code of Professional Responsibility. *fn3 As noted earlier, these rules broadly prohibit a lawyer either from recommending employment of himself to one who has not sought his advice or from accepting employment following such recommendation. In particular, the court rejected respondent's reliance on the Ethics Committee opinion referred to above, *fn4 which dealt with the quite different practice of distributing prepaid legal services brochures at random to persons having no known specific need for legal services at the time of contact.
Respondent, on the other hand, accosted persons known by him to have been charged with an incarcerable criminal offense, who were without counsel, and who had just been advised by a Judge concerning the maximum possible penalties upon conviction and the important assistance an attorney could provide. The vulnerability of persons in that situation should have been, and indeed was, obvious to the Respondent. It is just that type of situation, fraught as it is with the potential for ...