Attorney Grievance Commission of Maryland v. James Albert Frost, Misc. Docket AG No.
69, September Term, 2012, Opinion by Greene, J.

ATTORNEY DISCIPLINE – Attorney’s knowingly false statements impugning the integrity
and qualifications of several judges and public legal officers constitute a violation of MLRPC
8.2(a) and are not protected speech under the First Amendment to the United States
Constitution. Where an attorney makes repeated false allegations about the qualifications or
integrity of “a judge, adjudicatory officer or public legal officer,” without any explanation
or investigation into the substance of those allegations, he has demonstrated a lack of fitness
to practice law. Under the circumstances, the appropriate sanction for violations of MLRPC
8.1(b), 8.2(a), 8.4(a), (c) and (d) is disbarment.
Circuit Court for Anne Arundel County
Case No. 02-C-12-174606
Argued: January 13, 2014

                                              IN THE COURT OF APPEALS
                                                   OF MARYLAND

                                                 Misc. Docket AG No. 69

                                                  September Term, 2012
                                        ______________________________________

                                        ATTORNEY GRIEVANCE COMMISSION
                                                 OF MARYLAND

                                                             v.

                                                JAMES ALBERT FROST
                                        ______________________________________

                                             Barbera, C.J.
                                             Harrell
                                             Battaglia
                                             Greene
                                             Adkins
                                             McDonald
                                             Watts,

                                                     JJ.
                                        ______________________________________

                                                  Opinion by Greene, J.
                                                   Adkins, J., concurs.
                                             McDonald, J., concurs and dissents.
                                        ______________________________________

                                                 Filed: February 26, 2014
         The Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”),

acting pursuant to Maryland Rule 16-751(a), filed a “Petition for Disciplinary or Remedial

Action” against James Albert Frost (“Respondent” or “Frost”), on December 5, 2012.

Petitioner charged Frost with violating various Maryland Lawyers’ Rules of Professional

Conduct (“MLRPC” or “Rule”), specifically Rule 8.1 (Bar Admission and Disciplinary

Matters),1 Rule 8.2(a) (Judicial and Legal Officials);2 and Rule 8.4(a), (c) and (d)

(Misconduct).3

         Pursuant to Maryland Rule 16-752(a) (Order Designating Judge), this Court referred

the matter to the Honorable Paul F. Harris of the Circuit Court for Anne Arundel County to

conduct an evidentiary hearing and to render findings of fact and recommend conclusions

of law pursuant to Maryland Rule 16-757. After Petitioner made reasonable attempts to



1
    MLRPC 8.1 provides in pertinent part:
       [A] lawyer . . . in connection with a disciplinary matter, shall not: (a)
       knowingly make a false statement of material fact; or (b) fail to disclose a fact
       necessary to correct a misapprehension known by the person to have arisen in
       the matter, or knowingly fail to respond to a lawful demand for information
       from an admissions or disciplinary authority, except that this Rule does not
       require disclosure of information otherwise protected by Rule 1.6.
2
    MLRPC 8.2(a) provides:
       A lawyer shall not make a statement that the lawyer knows to be false or with
       reckless disregard as to its truth or falsity concerning the qualifications or
       integrity of a judge, adjudicatory officer or public legal officer, or of a
       candidate for election or appointment to judicial or legal office.
3
    MLRPC 8.4 provides in pertinent part:
       It is professional misconduct for a lawyer to: (a) violate or attempt to violate
       the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or
       induce another to do so, or do so through the acts of another; . . . (c) engage
       in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage
       in conduct that is prejudicial to the administration of justice[.]
personally serve Respondent with a copy of the Petition for Disciplinary or Remedial Action

and related papers, including discovery requests and a written request for admission of facts

and genuineness of documents,4 Petitioner effectuated service on Respondent by serving the

Client Protection Fund of the Bar of Maryland pursuant to Maryland Rule 16-753.5

Respondent filed no response to the Petition for Disciplinary Action and discovery requests,

including the Requests for Admissions, prompting the hearing judge’s entry of an order of

default. See Md. Rule 16-754(c) (providing that the failure to file an answer shall be treated

as a default).

       On May 14, 2013, Judge Harris conducted a hearing on the merits. Respondent failed



4
 The Affidavit of Robert C. Versis, Investigator for the Attorney Grievance Commission of
Maryland, states that Mr. Versis traveled to Respondent’s residence on two occasions. On
the first occasion, despite hearing movement within Respondent’s apartment, Mr. Versis
received no response at the door. At that time, Mr. Versis also viewed photocopies of
Respondent’s birth certificate, driver’s license, and Maryland State Bar Association
identification card, which were affixed to the exterior of the apartment door. Mr. Versis left
his business card with his telephone number at the apartment door, and the following day
received a lengthy voicemail message from an individual who identified himself as “Jim
Frost, James A. Frost.” On the second occasion, Mr. Versis noticed an individual, whose
appearance matched the photographs posted on Respondent’s apartment door, standing at a
nearby bus stop. Upon approaching the individual, Mr. Versis called Respondent’s name,
to which the individual responded, “Yeah?” After Mr. Versis displayed his identification
badge, the individual stated “You can go to hell!” and ran towards and around the apartment
building. Mr. Versis approached the building in his vehicle and then, exiting his vehicle, he
was able to view the individual inside the building through a glass breezeway. Again, upon
entering the building and knocking at Respondent’s apartment door, Mr. Versis received no
response.
5
 Md. Rule 16-753 provides in pertinent part: “If after reasonable efforts the attorney cannot
be served personally, service may be made upon the employee designated by the Client
Protection Fund of the Bar of Maryland pursuant to Rule 16-811 c 1 (x), who shall be
deemed the attorney’s agent for receipt of service.”

                                              2
to appear for or participate in the hearing. During the brief hearing, Petitioner requested that

all of Petitioner’s Requests for Admissions, which went unanswered by Respondent, be

deemed admitted.      Judge Harris granted the request and accepted the Requests for

Admissions into evidence. Thereafter, the hearing judge issued “Findings of Fact and

Conclusions of Law,” in which he found by clear and convincing evidence that Respondent’s

actions constituted violations of MLRPC 8.1(b), 8.2(a), 8.4(a), (c) and (d). In doing so,

Judge Harris made the following findings of facts:

       Respondent was admitted to the Maryland Bar on June 29, 1972. He does not
       maintain an office for the practice of law. On April 23, 2012, Respondent
       wrote an email to his ex-wife, stating, inter alia:

              With regard to Case #110082-C, you know or should know that:
              (1) Ann S. Harrington, a lawless judge, arranged for deputy
              sheriffs of the Montgomery County, MD, Sheriff’s Office to
              illegally arrest me on May 13, 2008, with no probable cause to
              do so and there by committed the crime under State of Maryland
              law of making a false report to an agency of the state with police
              powers; . . . (3) There was no basis in law or in fact for Judge
              Stephen P. Johnson, a weak man and corrupt judge acting under
              improper and political influence, to have me locked up in the
              county jail on a “no bond” order for 87 days and 87 nights but
              that’s what was done; and (4) The crooked State’s Attorney for
              Montgomery County, MD, John J. McCarthy, Esq., a protégé of
              Douglas F. Gansler, Esq., the corrupt Attorney General of
              Maryland, and a political ally of Maryland Governor O’Malley,
              a pretty-boy hack politician, didn’t let his assistant prosecutors
              drop the phon[y] charge against me until August 8, 2008.

              With regard to Case #11041-C . . . you know or should know
              that the Maryland State Police deceived District Court of
              Maryland Commissioner Kaitlyn Boyle into signing a warrant
              to arrest me and then deceived Circuit Court Judge Joseph A.
              Dugan, Jr., into signing a search and seizure warrant by and
              through perjury on the warrant applications signed on August


                                               3
       13, 2008, by Maryland State Trooper Michael Brennan, who
       was ordered to do that by Maryland State Police Captain
       Clifford T. Hughes, his supervisor, and Maryland State Police
       Superintendent Terence B. Sheridan, who were acting under
       improper and political influence exerted (through an
       intermediary) by Governor O’Malley and his wife, Judge of the
       District Court of Maryland for Baltimore City Catherine Curran
       O’Malley.

Respondent made the April 23, 2012 statements regarding the Honorable Ann
S. Harrington, specifically calling her a “lawless judge” and accusing her of
“arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff’s
Office to illegally arrest [him]” knowing the statements to be false and with
reckless disregard as to their truth or falsity. Respondent has no facts to
support the statements made regarding Judge Harrington.

Respondent made the April 23, 2012 statements regarding the Honorable
Stephen P. Johnson, Retired Judge for the District Court of Maryland for
Montgomery County, specifically calling him “a weak man and corrupt judge
acting under improper and political influence . . .” knowing the statements to
be false and with reckless disregard as to their truth or falsity. Respondent has
no facts to support the statement regarding Judge Johnson.

Respondent made the April 23, 2012 statement regarding John J. McCarthy,
State’s Attorney for Montgomery County, specifically calling Mr. McCarthy
a “crooked” State’s Attorney, knowing the statement to be false and with
reckless disregard as to its truth or falsity. Respondent has no facts to support
the statement regarding Mr. McCarthy.

Respondent made the April 23, 2012 statement regarding Douglas F. Gansler,
Attorney General of Maryland, specifically calling Mr. Gansler “corrupt,”
knowing the statement to be false and with reckless disregard as to its truth or
falsity. Respondent has no facts to support the statement regarding Mr.
Gansler.

Respondent made the April 23, 2012 statement regarding Governor O’Malley,
specifically that he exerted “improper” influence over members of the
Montgomery County Police Department, knowing the statement to be false and
with reckless disregard as to its truth or falsity. Respondent has no facts to
support the statement regarding Governor O’Malley.



                                       4
Respondent made the April 23, 2012 statement regarding the Honorable
Catherine Curran O’Malley, Judge [for the] District Court of Baltimore City,
specifically that she exerted “improper” influence over members of the
Montgomery County Police Department, knowing the statement to be false and
with reckless disregard as to its truth or falsity. Respondent has no facts to
support the statement regarding Judge Curran O’Malley.

On or about May 2, 2012, Respondent mailed a copy of the April 23, 2012
email to George Meng, Esquire. Prior to May 2, 2012, Respondent had no
relationship or communication with Mr. Meng. On or about May 2, 2012,
Respondent forwarded a copy of the April 23, 2012 email to Paul Carlin,
Esquire. On or about May 2, 2012, Respondent forwarded a copy of the April
23, 2012 email to Katherine Kelly Howard, Esquire.

On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23,
2012 email was sent to him, directing him to Rule 8.2, 8.3 and 8.4 of the
Maryland Lawyers’ Rules of Professional Conduct and requesting a response
as how the April 23, 2012 email did not violate Rules 8.2 and 8.4 and did not
require reporting to Petitioner pursuant to Rule 8.3. On May 10, 2012, no
response having been received to his May 4 email, Mr. Meng again emailed
Respondent requesting a response to the questions posed on May 4, 2012. On
May 18, 2012, Respondent emailed Mr. Meng stating, “You should have
something from me in your mail Monday.” On May 18, 2012, Respondent
mailed Mr. Meng a letter directed to Chief of Police J. Thomas Manger,
Montgomery County, Maryland. The May 18, 2012 letter did not, in any way,
respond to the questions posed by Mr. Meng in his emails of May 4 and May
10. Mr. Meng received the May 18, 2012 letter on May 21, 2012. On May 21,
2012, Mr. Meng emailed Respondent again requesting a response to his May
4 and May 10 emails.

On May 23, 2012, no further communication having been received from
Respondent, Mr. Meng filed a complaint with the Petitioner and enclosed: (1)
Respondent’s April 23, 2012 email, (2) Mr. Meng’s May 4, 2012 email to
Respondent, (3) Mr. Meng’s May 10, 2012 email to Respondent, (4) Mr.
Meng’s May 18, 2012 email to Respondent, (5) Respondent’s letter of May 1,
2012 to Chief of Police J. Thomas Manger, and (6) Mr. Meng’s May 21, 2012
email to Respondent.

By letter dated July 11, 2012, Bar Counsel forwarded a copy of the May 23,
2012 complaint and enclosures to Respondent and requested a response thereto
be provided, in writing, no later than July 27, 2012. Respondent received Bar


                                      5
Counsel’s July 11, 2012 letter and enclosures. On or about July 26, 2012,
Respondent sent a letter to Bar Counsel stating: “The statements of mine
concerning which objections have been presented to your office are protected
from state action by the free speech clause of the First Amendment to the
United States Constitution.” On or about July 27, 2012, Respondent sent a
letter to Bar Counsel stating, inter alia:

       How did it happen, I wonder, that ten days after my e-mail
       message of April 24 long-time A.G.C. of Maryland
       Commissioner George Meng (to whom I had forwarded that e-
       mail on the subject perjury) sends me an e-mail message (for the
       first time in his life) with the absurd allegation that I’m in
       violation of Rule 8 of the Rules of Professional Responsibility?
       No reasonably prudent individual would believe that you and he
       and, most likely, some other people had not conferred with one
       another about me and my truth-telling before on May 4 th George
       undertook his fruitless efforts to have me assume the role of
       attorney respondent who offers an explanation/states some
       defense to a “complaint.” How did you as the Maryland Bar
       Counsel dare to get involved in this sort of activity, Glenn? You
       should be ashamed of yourself.

By letter dated July 31, 2012, Bar Counsel directed Respondent’s attention to
Rule 8.2(a) and specifically requested evidence to substantiate his April 24,
2012 statements regarding The Honorable Ann S. Harrington, The Honorable
Stephen P. Johnson, State’s Attorney John J. McCarthy, and Attorney General
Douglas F. Gansler. A written response was required no later than August 13,
2012. Respondent received Bar Counsel’s letter dated July 31, 2012. On or
about August 4, 2012, Respondent sent a letter to Bar Counsel stating “The
statements of mine concerning which objections have been presented to the
Office of Maryland Bar Counsel are protected from state action by the free
speech clause of the First Amendment to the United States Constitution.” On
or about August 6, 2012, Respondent sent a copy of the August 4, 2012 letter
to Bar Counsel with the handwritten notation: “Ms. Lawless, Your letter to me
dated July 11th constitutes state action.”

Respondent never provided a substantive response to Bar Counsel’s requests
for information dated July 11, 2012 and July 31, 2012. Bar Counsel’s requests
for information were lawful. On or about August 15, 2012, Respondent sent
a letter to Bar Counsel demanding to know how many complaints Bar Counsel
had initiated. On or about September 13, 2012, Respondent sent a copy of a


                                      6
       letter addressed to “The Members of the Attorney Grievance Commission of
       Maryland” to Bar Counsel. The September 13, 2012 letter requested the
       commission “order Mr. Grossman to answer truthfully in writing the question
       posed to him in [the] August 15th letter post haste.” In addition to sending the
       September 13 letter to Bar Counsel, Respondent sent copies to the members
       of the Attorney Grievance Commission. On or about September 19, 2012,
       Respondent sent a copy of his August 15, 2012 letter to Bar Counsel.

Judge Harris further entered the following conclusions of law, determining that Respondent

violated MLRPC 8.1(b), 8.2(a), 8.4 (a), (c) and (d):

                    Rule 8.1. Bar Admission and Disciplinary Matters

                                           ****

       Respondent violated Rule 8.1(b) when he failed to provide any substantive
       response to Bar Counsel’s letters dated July 11, 2012 and July 31, 2012
       containing lawful demands for information.

                           Rule 8.2. Judicial and Legal Officers

                                           ****

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that the
       Honorable Ann S. Harrington was [a] “lawless judge” and accusing her of
       “arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff’s
       Office to illegally arrest [him].”

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that the
       Honorable Stephen P. Johnson, Retired Judge for the District Court of
       Maryland for Montgomery County, was “a weak man and corrupt judge acting
       under improper and political influence . . .”

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that the
       Honorable Catherine Curran O’Malley, Judge [for the] District Court of
       Maryland for Baltimore City, exerted “improper” influence over members of
       the Montgomery County Police Department.

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that John
       J. McCarthy, State’s Attorney for Montgomery County, was a “crooked”


                                              7
       [State’s Attorney].

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that
       Douglas F. Gansler, Attorney General of Maryland, was “corrupt.”

       Respondent violated Rule 8.2(a) when, on April 23, 2012, he stated that
       Governor O’Malley, exerted “improper” influence over members of the
       Montgomery County Police Department.

                                  Rule 8.4. Misconduct

                                          ****

       The [c]ourt, as discussed herein, having concluded that Respondent violated
       Rules 8.1(b), 8.2(a), 8.4(c) and (d) concludes that Respondent has also
       committed misconduct in violation of Rule 8.4(a).

       Respondent violated Rule 8.4(c) when he made the statements regarding
       Judges Harrington, Johnson and Curran O’Malley, State’s Attorney McCarthy,
       Attorney General Gansler and Governor O’Malley knowing the statements to
       be false.

       Respondent’s conduct, taken as a whole, violates Rule 8.4(d). (Citations
       omitted.)

Although Respondent did not at any time participate in the proceedings in the Circuit Court

for Anne Arundel County, on May 23, 2013, he filed with this Court a motion to vacate any

findings of fact and conclusions of law made by Judge Harris, and to dismiss the action for

lack of proper service of process, which we denied on May 30, 2013.6

       Neither Respondent nor Petitioner filed exceptions to the findings of fact and




6
  This “Motion to Vacate and to Dismiss” was filed nine days after the May 14, 2013
disciplinary hearing, and approximately two weeks before the June 13, 2013 filing of Judge
Harris’s written findings of facts and conclusions of law.

                                            8
conclusions of law of the hearing judge.7           On July 5, 2013, Petitioner filed its

Recommendation for Sanction, recommending disbarment. On July 17, 2013, Respondent

filed a new motion to dismiss with this Court, alleging principally that there was insufficient

service of process upon him, that he had committed no violation of any Rule of Professional

Responsibility, and that the statements underlying the instant action against him were

protected by the Free Speech Clause of the First Amendment to the United States

Constitution. He further requested that this Court “dismiss this unjustified, unjustifiable, and

downright ridiculous attorney disciplinary case.”         Subsequently, on July 30, 2013,

Respondent filed a “Statement” requesting this Court to consider Respondent’s July 13, 2013

“Motion to Dismiss” as timely filed exceptions in this case. Respondent’s “Motion to

Dismiss” was not, by its title or date, filed properly or timely under Rule 16-758(b),8 and we

decline to consider it to be timely filed exceptions.

                                          Discussion

       In attorney discipline proceedings, “this Court has original and complete jurisdiction

and conducts an independent review of the record . . . . [T]he hearing judge’s findings of fact


7
  Although Petitioner did not file any exceptions to the hearing judge’s findings and
conclusions, see Rule 16-758(b), at oral argument before this Court, Petitioner conceded that
the hearing judge erred in concluding that Respondent’s statement about Governor O’Malley
violated Rule 8.2(a), because, as discussed infra, the governor is not a “public legal officer”
within the meaning of Rule 8.2(a).
8
  Rule 16-758(b) provides in relevant part: “Within 15 days after service of the notice
required by section (a) of this Rule, each party may file (1) exceptions to the findings and
conclusions of the hearing judge . . . .” As Respondent stated in his “Statement,” the
deadline to file exceptions to Judge Harris’s findings of fact and conclusions of law was July
8, 2013.

                                               9
generally will be accepted unless they are clearly erroneous.” Attorney Grievance Comm’n

v. Cherry-Mahoi, 388 Md. 124, 152, 879 A.2d 58, 76 (2005) (citations omitted). Maryland

Rule 16-759(b)(2)(A) provides, “[i]f no exceptions are filed, the Court may treat the findings

of fact as established for the purpose of determining appropriate sanctions, if any.” In other

words, we deem the hearing judge’s findings of fact “correct if (1) they are not clearly

erroneous, or (2), at th[is] Court’s option, if neither party filed exceptions to them.” Attorney

Grievance Comm’n v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 868 (2013) (citations

omitted). After a review of the record, and because neither Petitioner nor Respondent filed

exceptions to the hearing judge’s findings of fact, we conclude that the facts are established

as determined by Judge Harris.

        The hearing judge’s proposed conclusions of law are reviewed for legal correctness.

Attorney Grievance Comm’n v. West, 378 Md. 395, 410, 836 A.2d 588, 596 (2003). “In

other words, the ultimate determination as to an attorney’s alleged misconduct is reserved for

this Court.” Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 552, 16 A.3d 181, 192

(2011) (citation omitted). Based on our review of the record, we agree with the hearing

judge that Respondent violated Rules 8.1(b), 8.2(a), 8.4(a), (c) and (d). We will, however,

address Respondent’s “Motion to Dismiss,” in which he alleged that he was not properly

served, and that his conduct, as it relates to the violation of Rule 8.2(a), is entitled to First

Amendment protection. We conclude that his motion is without merit.

       As noted previously, an order of default was entered against Respondent due to his

failure to file an answer or participate in the disciplinary proceedings. Moreover, Respondent


                                               10
failed to bring his claims regarding improper service to the attention of the hearing judge.

Rather, his “motions to dismiss” were filed with this Court after the disciplinary hearing had

concluded, thus the hearing judge was never given an opportunity to rule on them. Where

Respondent failed to participate in or appear for the disciplinary hearing despite being

properly served with process, and where the circumstances surrounding Petitioner’s attempts

to personally serve Respondent indicate his awareness of the instant proceedings,

Respondent’s failure to comply with the rules for disciplinary procedures is inexcusable. See

Attorney Grievance Comm’n v. Steinberg, 395 Md. 337, 361, 910 A.2d 429, 443 (2006)

(holding that where an attorney received service of process and provided no valid reason for

his failure to participate in the proceedings, the attorney’s “failure to appear at the hearing

[was] inexcusable” and that the order of default was proper); Attorney Grievance Comm’n

v. Faber, 373 Md. 173, 178-79, 817 A.2d 205, 208-09 (2003) (rejecting the respondent’s

exception that he did not receive proper service and that he was denied due process, where

bar counsel demonstrated repeated attempts to serve the respondent personally and on the

Client Protection Fund of the Bar of Maryland). Therefore, we will not set aside the default

entered against Respondent. We next address Respondent’s First Amendment argument as

it relates to the hearing judge’s conclusion that Respondent violated Rule 8.2(a).

       MLRPC Rule 8.2(a) provides that “[a] lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a

candidate for election or appointment to judicial or legal office.” The facts establish that


                                              11
Respondent made the following statements in his email dated April 23, 2012, later

disseminated to members of the Bar:

       1. That the Honorable Ann S. Harrington was a “lawless judge” and accusing
       her of “arrang[ing] for deputy sheriffs of the Montgomery County, MD
       Sheriff’s Office to illegally arrest [him];”

       2. That the Honorable Stephen P. Johnson, Retired Judge for the District Court
       of Maryland for Montgomery County, was “a weak man and corrupt judge
       acting under improper and political influence;”

       3. That the Honorable Catherine Curran O’Malley, Judge for the District Court
       of Maryland for Baltimore City, exerted “improper” influence over members
       of the Montgomery County Police Department;

       4. That John J. McCarthy, State’s Attorney for Montgomery County, was a
       “crooked” State’s Attorney;

       5. That Douglas F. Gansler, Attorney General of Maryland, was “corrupt;” and

       6. That Governor O’Malley exerted “improper” influence over members of the
       Montgomery County Police Department.

Along with its Petition for Disciplinary or Remedial Action, Petitioner served Requests for

Admissions asking Respondent to admit that at the time he made each of the above

statements, he knew them to be false or made them with reckless disregard for their truth or

falsity, and that he had no facts to support any of the statements. Because Respondent failed

to answer the requests, they were deemed admitted and, therefore, Respondent is charged

with knowledge of the falsity of each statement, or reckless disregard as to the truth or falsity

of each statement. See Md. Rule 16-756 (providing that discovery in attorney grievance

cases is governed by Title 2, Chapter 400 of the Maryland Rules); Md. Rule 2-424(b) (“Each

matter of which an admission is requested shall be deemed admitted unless . . . the party to


                                               12
whom the request is directed serves a response . . . .”); De La Paz, 418 Md. at 542, 16 A.3d

at 186 (noting that because the attorney “failed to file an answer to Bar Counsel’s Petitions

or respond to its Requests for Admissions of Facts and Genuineness of Documents; thus, the

factual averments in those Petitions were deemed admitted, in accordance with Md. Rules

2-323(e), 2-613, and 16-754(c)”); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 39

n.11, 891 A.2d 1085, 1088 n.11 (2006) (noting that unanswered requests were deemed

admitted under Rule 16-756 and 2-424(b)); Murnan v. Hock, Inc., 274 Md. 528, 534, 335

A.2d 104 (1975) (holding that, unless other relief was sought, unanswered admissions were

“conclusively binding”).

       We agree with the hearing judge’s conclusion that each of Respondent’s statements

relate to the integrity and/or qualifications of the named individuals, and that Respondent

made the statements knowing they were false or with reckless disregard as to their truth or

falsity. At the outset, we reject the hearing judge’s conclusion that Respondent’s statement

as to Governor O’Malley violates Rule 8.2(a), because Governor O’Malley, the chief

executive of the State of Maryland, is not a “public legal officer” for the purposes of the

Rule.9 The five remaining statements, however, involve judges or public legal officers,


9
 See Comment [1] to MLRPC 8.2(a), providing that “[a]ssessments by lawyers are relied on
in evaluating the professional or personal fitness of persons being considered for election or
appointment to judicial office and to public legal offices, such as attorney general,
prosecuting attorney and public defender. . . .” The attorney general, prosecuting attorneys,
and public defender play important roles in our judicial system. Accordingly, false
statements by lawyers impugning the integrity and qualifications of those offices would
weaken public confidence in our judicial system. By contrast, the governor, the chief
executive officer of the State, does not function as a legal officer within the judiciary.
                                                                                 (continued...)

                                              13
which fall under the purview of Rule 8.2(a). We shall hold that by making those five

statements, with the knowledge that they were false or with reckless disregard for their truth

or falsity, Respondent violated Rule 8.2(a), and further that Respondent’s statements are not

entitled to protection under the First Amendment.

       Moreover, these statements are, generally, the kind of statements that Rule 8.2(a) is

intended to prevent. Allegations of corruption tend to discredit the public’s trust and

confidence in the judiciary and judicial system.         Our analysis of this case rests on

Respondent’s statements taken together as a whole. For the sake of clarity, we note that

certain phrases, alone, may not necessarily rise to the level of an attack on a judicial officer

or public legal officer sufficient to warrant action pursuant to Rule 8.2(a). For example,

Respondent’s use of the words “lawless” and “weak man,” without further allegations or

criticisms, in another circumstance might not constitute a violation of Rule 8.2(a). Here,

nevertheless, where those phrases were used in conjunction with false factual allegations of

corrupt activity, to include collusion with law enforcement and “arrang[ing] for deputy

sheriffs . . . to illegally arrest [him],” Respondent is clearly in violation of Rule 8.2(a).

       The Preamble to the Maryland Lawyers’ Rules of Professional Conduct provides that

“[6] . . . a lawyer should further the public’s understanding of and confidence in the rule of

law and the justice system because legal institutions in a constitutional democracy depend

on popular participation and support to maintain their authority.”             In other words,



(...continued)
Therefore, the governor is not a “public legal officer” under the purview of Rule 8.2(a).

                                               14
“[m]embers of the legal profession have a responsibility to refrain from engaging in conduct

prejudicial to the administration of justice.” Attorney Grievance Comm’n v. DeMaio, 379

Md. 571, 581, 842 A.2d 802, 808 (2004). Rule 8.2(a) furthers this principle by requiring

lawyers to refrain from impugning the qualifications or fitness of judicial and public legal

officers. As Comment [1] to MLRPC 8.2(a) clarifies, “[e]xpressing honest and candid

opinions on such matters contributes to improving the administration of justice. Conversely,

false statements by a lawyer can unfairly undermine public confidence in the administration

of justice.”10 See also In re Simon, 913 So. 2d 816, 824 (La. 2005) (“While a lawyer as a

citizen has a right to criticize [judges, judicial officers or public legal officers] publicly, he

[or she] should be certain of the merit of his complaint, use appropriate language, and avoid

petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence

in our legal system.”). In other words, the purpose of Rule 8.2(a) is not to protect judges,

judicial officers, or public legal officials from unkind or undeserved criticisms. Rather, Rule

8.2(a) protects the integrity of the judicial system, and the public’s confidence therein, and

it does so in a limited way. Statements in violation of Rule 8.2(a) must (1) be false, (2)

impugn the integrity or qualifications of judges, judicial officers or public legal officers, and

(3) be made by the attorney knowing them to be false or with reckless disregard for their


10
  For additional commentary on Rule 8.2(a), see Melvin Hirshman, Did I Mean to Say That?,
42 Md. B.J. 69-70 (Sept./Oct. 2009) (discussing cases in Maryland and elsewhere involving
violations of Rule 8.2(a), and concluding that “[t]hese cases demonstrate the need for an
attorney to undergo a cooling off period and consultation with others before ‘lashing out’ at
the judiciary. There is a limit to verbalizing one’s inner thoughts. I’m sure many an attorney
has been upset during a trial, a ruling, an opinion, etc. So, look before your leap!”).


                                               15
truth or falsity.

       In Attorney Grievance Comm’n v. Hermina, 379 Md. 503, 842 A.2d 762 (2004), we

found a violation of Rule 8.2(a) where the attorney made an accusation of an ex parte

conference between opposing counsel and the trial judge with reckless disregard for its truth

or falsity. We held that this conduct was “wholly improper” and that “[i]f there was a

question in his mind about the conversation between [the trial judge] and [opposing counsel]

. . . [the attorney] should have brought his client’s concern to [the judge’s] attention and

made appropriate inquiry of her, not write a letter to counsel accusing him and the judge of

having an inappropriate ex parte communication[.]” Hermina, 379 Md. at 520-21, 842 A.2d

at 772. See also Attorney Grievance Comm’n v. McLain, 406 Md. 1, 16, 956 A.2d 135, 143

(2008) (finding a violation of Rule 8.2(a) where respondent used “misleading statements to

support the assertion that [the trial judge] was motivated by personal bias [which] improperly

called the judge’s integrity into question.”).

       In Attorney Grievance Comm’n v. DeMaio, we found a violation of 8.2(a) where the

attorney made several “false, spurious and inflammatory representations and allegations” in

briefs and other court filings regarding the Chief Judge and Clerk of the Court of Special

Appeals. 379 Md. at 585, 842 A.2d at 810. In particular, the respondent made claims that

the Chief Judge and Clerk of the Court of Special Appeals had “collu[ded] . . . to remove

briefs from the legal process” and that the judge was “engaged in a scheme of unjust

enrichment.” DeMaio, 379 Md. at 576, 842 A.2d at 805. In that case, much like in the

instant case, the respondent refused to participate in the disciplinary process and the hearing


                                                 16
judge entered an order of default against him. DeMaio, 379 Md. at 573-74, 842 A.2d at 803.

After bar counsel filed its recommendation for sanction, the respondent filed a “response”

to the recommendation for sanction, in which he criticized bar counsel’s investigation and

action against him. DeMaio, 379 Md. at 578, 842 A.2d at 806. Moreover, the respondent

maintained his allegations against the Chief Judge and Clerk of the Court of Special Appeals

and made no apparent attempts to investigate or substantiate his claims. We held that these

statements were cause for disbarment, and “certainly is conduct that prejudices the

administration of justice seriously and most directly.” DeMaio, 379 Md. at 585, 842 A.2d

at 810.

          Although DeMaio did not contend that his statements were entitled to First

Amendment protection, in that case we nevertheless discussed In re Evans, 801 F.2d 703 (4th

Cir. 1986), in which the Fourth Circuit specifically rejected such a First Amendment

argument. In that case, the United States District Court for the District of Maryland disbarred

Evans from practicing law in that court for a violation of Rule 8.2(a) where Evans wrote a

letter accusing a magistrate judge of incompetence and/or religious and racial bias. In

rejecting Evans’s argument that his speech was protected under the First Amendment, the

Fourth Circuit, quoting a New York state appellate court, stated:

          Judicial officers, as we have said, are not immune from suit or criticism; but,
          like every one else, they are protected against scandalous charges. To make
          a public, false and malicious attack on a judicial officer is more than an
          offense against him individually; it is an offense against the dignity and
          integrity of the courts and of our judicial system. It may bring discredit upon
          the administration of justice amongst citizens who have no way of determining
          the truth of the charges. It tends to impair the respect and authority of the


                                                17
       court. In this and in other jurisdictions, the rule is well settled that an attorney
       who engages in making false, scandalous or other improper attacks upon a
       judicial officer is subject to discipline.

In re Evans, 801 F.2d at 707 (quoting In the Matter of Greenfield, 24 A.D.2d 651, 652, 262

N.Y.S.2d 349, 350-51 (N.Y. App. Div. 1965)). The Fourth Circuit also cited several other

jurisdictions that have reached a similar conclusion as to the limitations of First Amendment

protection for speech by lawyers that is in contravention of rules of professional conduct and

prejudicial to the administration of justice. In re Evans, 801 F.2d at 707-08 (citing The

People ex rel. The Chicago Bar Assn., Relator, v. Metzen, 125 N.E. 734 (Ill. 1919); Kentucky

Bar Assn. v. Williams, 682 S.W.2d 784 (Ky. 1984); In re Rogers, 212 P. 1034 (N.M. 1923);

In re Manheim, 113 A.D. 136 (N.Y. App. Div. 1906)).

       In recent years, additional state and federal courts have chimed in on these limitations.

For example, the Supreme Court of Indiana, discussing whether the New York Times 11


11
   New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)
(holding that to satisfy the protections of the First Amendment, a public official must prove
that a defamatory statement was made with “actual malice” in order to recover damages).
In defamation cases, we apply the New York Times subjective test to evaluate whether the
defendant made the defamatory statements with “actual malice,” which requires proof that
the defendant made the statement knowing it to be false or with reckless disregard to its truth
or falsity. See Batson v. Shiflett, 325 Md. 684, 728, 602 A.2d 1191, 1213-14 (1992). An
attorney discipline case involving defamatory statements, however, is not the same as a
defamation case. See Standing Comm. v. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995)
(“[T]here are significant differences between the interests served by defamation law and
those served by rules of professional ethics.”). There appears to be disagreement among the
states as to whether the general defamation standard announced in New York Times, i.e. the
subjective test, should apply equally to attorney discipline cases. Most courts, however, have
chosen to apply an objective standard to attorney conduct in Rule 8.2(a) violation cases. See
e.g. United States Dist. Ct. v. Sandlin, 12 F.3d 861, 867 (9th Cir. 1993) (recognizing that
“[w]hile the language of [Rule] 8.2(a) is consistent with the constitutional limitations placed
                                                                                   (continued...)

                                               18
subjective test or an objective test would apply to Rule 8.2(a)12 violations, recently stated:

       First, the limits on professional speech by attorneys are not coextensive with
       the limits of the First Amendment. . . . Second, attorneys are expected to
       exercise reasonable objectivity in their statements about judicial officers. We
       expect those who have been granted the special privilege of admission to the
       bar to bring reasonable objectivity to their statements about judicial officers;
       to rise above the raw emotions and accusations that impede rather than
       enhance the judicial process.

In re Dixon, 994 N.E.2d 1129, 1136 (Ind. 2013). See also United States Dist. Ct. v. Sandlin,

12 F.3d 861, 866 (9th Cir. 1993) (“[O]nce a lawyer is admitted to the bar, although he does

not surrender his freedom of expression, he must temper his criticisms in accordance with

professional standards of conduct.”); Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 429

(Ohio 2003) (“The First Amendment does not shield an attorney from discipline for falsely

suggesting ‘unseemly complicity’ by the judiciary in unlawful or unethical practices. Such

false statements, whether by attorneys or others, enjoy no constitutional protection when they




(...continued)
on defamation actions by New York Times, because of the interest in protecting the public,
the administration of justice, and the profession, a purely subjective standard is inappropriate.
Thus, we determine what the reasonable attorney, considered in light of all his professional
functions, would do in the same or similar circumstances.”) (citation and quotation omitted);
Yagman, 55 F.3d at 1438 (following Sandlin and stating that “an objective malice standard
strikes a constitutionally permissible balance between an attorney’s right to criticize the
judiciary and the public’s interest in preserving confidence in the judicial system: Lawyers
may freely voice criticisms supported by a reasonable factual basis even if they turn out to
be mistaken.”). Here, because Respondent, by default, is deemed to have admitted that the
statements were false and that he had actual knowledge of their falsity, we need not and do
not address the issue of whether a subjective or objective standard is appropriate in this
context.
12
 Indiana Professional Conduct Rule 8.2(a) uses the same language as MLRPC 8.2(a), which
both follow Rule 8.2(a) of the ABA Model Rules of Professional Conduct.

                                               19
are made with knowledge of their falsity or reckless disregard for their truth.”) (citations

omitted); Matter of Westfall, 808 S.W.2d 829, 836 (Mo. 1991) (“As officers of the court,

lawyers do not stand in the shoes of ordinary citizens.         Lawyers must execute their

professional responsibilities ethically and pursuant to rules, carefully considered, in order to

ensure the confidence of both litigants and the public.”) (citations omitted).

       In a different context, we discussed limitations on lawyers’ extrajudicial speech in

Attorney Grievance Comm’n v. Gansler, 377 Md. 656, 835 A.2d 548 (2003). In that case,

then State’s Attorney for Montgomery County Douglas Gansler was charged with violating

Rule 3.6, which prohibits lawyers from making certain extrajudicial statements that the

lawyer knows or should know have a substantial likelihood of causing material prejudice to

an adjudicative proceeding. We discussed the origins and purpose of Rule 3.6, which

generally is to protect defendants’ Sixth Amendment right to a fair trial. Gansler, 377 Md.

at 674-77, 835 A.2d at 558-59. In addressing the applicability of the First Amendment to

speech by attorneys in the context of Rule 3.6, we stated that “[i]n general, the First

Amendment applies equally to an ordinary citizen and an attorney,” but, when acting as an

attorney, “[e]ven outside the courtroom, the speech of a lawyer may be curtailed to an extent

greater than an ordinary citizen’s.” 377 Md. at 677, 835 A.2d at 560 (citation and quotation

omitted).13 Noting that “attorneys occupy a special role as participants in the criminal justice


13
   “This Court has long held lawyers to a higher standard of conduct than the average
citizen.” Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 253, 812 A.2d 981, 998
(2002). See also Bradley v. Fisher, 80 U.S. 335, 355, 20 L. Ed. 646 (1871) (“[T]he
obligation which attorneys impliedly assume, if they do not by express declaration take upon
                                                                                (continued...)

                                              20
system, and, as a result, the public may view their speech as authoritative and reliable[,]” we

held that Gansler violated Rule 3.6 by making several statements to the press about certain

defendants’ confessions, plea bargains, and his opinion of their guilt, related to pending

cases. Gansler, 377 Md. at 676, 835 A.2d at 569. Our analysis in Gansler is consistent with

DeMaio and our analysis of Rule 8.2(a) today. Although Rule 8.2(a) limits attorney speech,

it does so in a narrow context. The purpose of the Rule is to prevent damage to the integrity

of the judicial system. False statements impugning the integrity of “judges, judicial officers,

and public legal officials” undermines the integrity of the judiciary, and “prejudices the

administration of justice seriously and most directly.” DeMaio, 379 Md. at 585, 842 A.2d

at 810. Accordingly, where Respondent made knowingly false statements alleging corrupt

activity by several judges and public legal officers in relation to earlier criminal proceedings

against him, such expression is not entitled to protection under the First Amendment and is

plainly in violation of MLRPC Rule 8.2(a).14


13
  (...continued)
themselves, when they are admitted to the bar, is not merely to be obedient to the
Constitution and laws, but to maintain at all times the respect due to courts of justice and
judicial officers. This obligation is not discharged by merely observing the rules of courteous
demeanor in open court, but it includes abstaining out of court from all insulting language
and offensive conduct toward the judges personally for their judicial acts.”).
14
  We note that there are qualified and absolute privileges that will apply to certain speech
as a defense to defamation claims, and these privileges generally apply equally to statements
made by lawyers. For example, in defamation cases, an attorney has an absolute privilege
to make defamatory statements that are rationally related to a judicial proceeding. See
Norman v. Borison, 418 Md. 630, 650, 17 A.3d 697, 709 (2011). We agree with several of
our sister states, however, that there is no absolute privilege that would protect an attorney
from disciplinary action. See Loigman v. Twp. Comm. of Twp. of Middletown, 889 A.2d 426,
                                                                                 (continued...)

                                              21
                                          Sanction

       Our goal when imposing sanctions is to protect the public and the public’s confidence

in the legal profession, not to punish the erring attorney. See Attorney Grievance Comm’n

v. Tanko, 408 Md. 404, 424-25, 969 A.2d 1010, 1023 (2009); Attorney Grievance Comm’n

v. Goff, 399 Md. 1, 30, 922 A.2d 554, 571 (2007); Attorney Grievance Comm’n v. Rees, 396

Md. 248, 254, 913 A.2d 68, 72 (2006). Sanctions protect the public when they deter future

offending conduct and remove “those unfit to continue in the practice of law from the rolls

of those authorized to practice in this State.” Attorney Grievance Comm’n v. Gore, 380 Md.

455, 471-72, 845 A.2d 1204, 1213 (2004). When sanctions are imposed, they should be

“commensurate with the nature and gravity of the violations and the intent with which they

were committed.” Attorney Grievance Comm’n v. Stein, 373 Md. 531, 537, 819 A.2d 372,

375 (2003).

       In DeMaio, a case substantially similar to the case at bar, we held that disbarment was

the appropriate sanction, stating that:

       Making accusations in petitions to this Court seeking their removal, impugning
       the integrity of the Chief Judge of the Court of Special Appeals and the Clerk
       of that court, without justification or even an attempt at justification beyond
       conjecture and speculation, and repeating those accusations during the


      (...continued)
438 (N.J. 2006); Krouse v. Bower, 20 P.3d 895, 901 n.1 (Utah 2001); Kirschstein v. Haynes,
788 P.2d 941, 950 (Okla. 1990); Selby v. Burgess,712 S.W.2d 898, 900 (Ark. 1986).
Absolute privilege is a broad defense to tort claims, including tort claims related to
statements made in connection to pending AGC actions, see Mixter v. Farmer, 215 Md. App.
536, 81 A.3d 631(2013); however, we confirm that it is not a defense to claims of
unprofessional conduct.


                                             22
       disciplinary hearing, again without attempt at justification, are themselves, as
       they would be with respect to any judge or clerk, cause for disbarment.

DeMaio, 379 Md. at 585, 842 A.2d at 810. Additionally, DeMaio failed to demonstrate any

investigation or factual basis for his allegations, and maintained his allegations throughout

the disciplinary proceedings against him. Quoting In re Evans, we stated that:

       [A]ppellant’s failure to investigate, coupled with his unrelenting reassertion
       of the charges . . . convincingly demonstrates his lack of integrity and fitness
       to practice law. A person guilty of such practices is . . . dangerous in any walk
       of life and is especially so when he occupies the responsible position of an
       attorney upon whose good faith, truthfulness, sense of propriety and ethical
       standards both courts and litigants are entitled to rely.

DeMaio, 379 Md. at 584, 842 A.2d at 809-10 (quoting In re Evans, 801 F.2d at 706). We

also noted that, in addition to making false statements about the integrity and qualifications

of judicial officers, the attorney’s response to the disciplinary proceedings “raise[d] other

questions with respect to the respondent’s fitness to continue in the practice of law.”

DeMaio, 379 Md. at 585, 842 A.2d at 810.

       In the present matter, we have concluded that Respondent violated Rules 8.1(b),

8.2(a), 8.4(a), (c) and (d). In addition, Respondent has repeatedly refused to offer any

justification for his conduct, which, like in DeMaio, raises a question as to his fitness to

continue in the practice of law. Respondent made numerous unsubstantiated allegations

against judges and public legal officers, which he then disseminated without explanation to

members of the Bar. Despite repeated requests to explain these allegations, as well as

requests to explain why he disseminated them to various members of the Bar, Respondent

has at all times ignored these requests or refused to offer any rational reason for his criticisms


                                               23
or the dissemination of those criticisms. Respondent has also presented no evidence that he

has made any investigation into the truthfulness of his claims. In addition to his outright

failure to respond or participate meaningfully in the instant proceedings, Respondent’s

inflammatory letter to Bar Counsel, stating, for example, “you should be ashamed of

yourself,” and insinuating that Bar Counsel would not respond “truthfully” to his

communications, as well as his “motion to dismiss” referring to the instant action as an

“unjustified, unjustifiable, and downright ridiculous attorney disciplinary case,” all reflect

Respondent’s lack of fitness to continue in the practice of law. Considering all of the

foregoing, we agree with Petitioner that the appropriate sanction is disbarment.


                                           IT IS SO ORDERED; RESPONDENT SHALL
                                           PAY ALL COSTS AS TAXED BY THE
                                           CLERK OF THIS COURT, INCLUDING
                                           THE COSTS OF ALL TRANSCRIPTS,
                                           PURSUANT TO RULE 16-761, FOR WHICH
                                           SUM JUDGMENT IS ENTERED IN FAVOR
                                           O F T H E A T T O R N E Y G R IEV A N C E
                                           COMMISSION AGAINST JAMES ALBERT
                                           FROST.




                                             24
Circuit Court for Anne Arundel County
Case No. 02-C-12-174606
Argued: January 13, 2014

                                          IN THE COURT OF APPEALS OF

                                                    MARYLAND


                                               Misc. Docket AG No. 69

                                                September Term, 2012



                                        ATTORNEY GRIEVANCE COMMISSION
                                                OF MARYLAND

                                                          v.

                                              JAMES ALBERT FROST



                                                 Barbera, C.J.
                                                 Harrell
                                                 Battaglia
                                                 Greene
                                                 Adkins
                                                 McDonald
                                                 Watts,

                                                       JJ.




                                           Concurring Opinion by Adkins, J.



                                              Filed: February 26, 2014
       The Majority opinion is well-researched and well-stated. Respectfully, I write this

concurring opinion to articulate a constraint on our disciplinary authority that the

Majority does not express.     In my view, there are boundaries on our authority to

discipline an attorney for false statements or reckless statements under Maryland

Lawyers’ Rules of Professional Conduct 8.2(a) that are dependent on the context of the

false or reckless statement that is made. Judge McDonald ventures that “few lawyers – or

judges – have not, at some time, uttered an unkind and undeserved criticism of a judge,

an Attorney General, a State’s Attorney, or a Public Defender.”            McDonald, J.,

Concurring and Dissenting Slip Op. at 4.          I agree, and add that, in frustration,

disappointment, or anger at an adverse ruling, it is altogether human to do so—even if the

statement is false, or made with reckless disregard for its truth. Such statements should

not be the subject of professional discipline, provided they are made to family members,

within the confines of one’s own law firm, or to other close associates whom the speaker

knows to be like-minded. Were we to discipline lawyers for such statements, we and the

Attorney Grievance Commission would be treading on the constitutional protection for

freedom of speech so cherished by our citizens.

       As Judge McDonald points out, the First Amendment is not confined to, or even

primarily directed at, discussions among like-minded people. I limit my comment to this

context only to give reassurance to practicing lawyers that I, at least, would not agree to

our being “word police” of their day-to-day conversations about judges.

       But, here, the statements made by Respondent were not so confined. As the

Majority says, the statements in question were intentionally mailed by Respondent to
lawyers who were not part of a judicial or other disciplinary body, and with whom he had

absolutely no relationship and no reason to correspond, except to make the admittedly

false and defamatory statements. I do not share Judge McDonald’s view that we should

restrain from imposing discipline based upon a respondent’s deemed admissions. In this

context, I agree that the discipline imposed by the Majority opinion is fully justified.




                                                 2
Circuit Court for Anne Arundel County
Case No. 02-C-12-174606
Argued: January 13, 2014
                                              IN THE COURT OF APPEALS
                                                   OF MARYLAND

                                                  Misc. Docket AG No. 69

                                                  September Term, 2012
                                        ______________________________________

                                        ATTORNEY GRIEVANCE COMMISSION
                                                 OF MARYLAND

                                                              v.

                                                JAMES ALBERT FROST
                                        ______________________________________

                                              Barbera, C.J.
                                              Harrell
                                              Battaglia
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts,

                                                     JJ.
                                        ___________________________________

                                             Concurring and Dissenting Opinion
                                                      by McDonald, J.
                                        ___________________________________

                                              Filed: February 26, 2014
       Although the Majority opinion is well thought out and carefully written, I cannot join

it. Our primary purpose in attorney discipline is to protect the public from inept or errant

lawyers, not to protect public officials from criticism, even if unjustified. I would suspend

Mr. Frost for his failure to respond adequately to Bar Counsel’s inquiry, but am not

comfortable disbarring on this limited record for what appears to be largely an expression of

opinion, misguided though that opinion may be.

       Under the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(b), an

attorney should respond to a lawful inquiry from Bar Counsel, even if, in the attorney’s view,

the underlying complaint is frivolous or any resulting disciplinary action would ultimately

prove untenable. Mr. Frost’s failure to respond substantively to Bar Counsel’s inquiry thus

violated MLRPC 8.1(b).1 An appropriate sanction would be an indefinite suspension with

a special condition of readmission that he cooperate with Bar Counsel’s inquiry. In addition,

the record of this matter documents erratic behavior by Mr. Frost that raises reasonable

questions about his judgment and competence (in the broadest sense).               Given our

responsibility to the public with respect to those we license to serve it as attorneys, I would

also condition Mr. Frost’s readmission on the results of an appropriate medical evaluation.

See Maryland Rule 16-760(h)(1).

       MLRPC 8.2(a) incorporates in the disciplinary rules a restriction on attorney speech

outside the courtroom or a legal proceeding. The alleged violation of MLRPC 8.2(a) in this


       1
          These facts would also support a determination that Mr. Frost violated MLRPC
8.4(a) (violation of the MLRPC) and 8.4(d) (conduct prejudicial to the administration of
justice).
case is based on the content of an e-mail that Mr. Frost sent to his ex-wife and then

inexplicably shared with three other lawyers. MLRPC 8.2(a) prohibits a lawyer from making

a statement concerning the qualifications or integrity of a judge (or other legal officer) only

if the lawyer makes the statement with knowledge that it is false or with “reckless disregard”

as to its truth. The Restatement of the Law Governing Lawyers reiterates that standard and

elaborates its rationale:

                       Lawyers are specially situated to assess the official
               performance of judges and other judicial and legal officers.
               Accordingly, both constitutional law and sound social policy
               require that lawyers have broad latitude in criticizing such
               officers. Under the rule of New York Times v. Sullivan, 376
               U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny,
               judges and other public legal officers are “public officials,” so
               that an action by a judge or public legal officer against a lawyer
               for damages for defamation would require a showing of actual
               malice. Similar considerations should also lead to application
               of the standard in New York Times v. Sullivan in lawyer-
               discipline cases.

Restatement (Third) of the Law Governing Lawyers §114, comment b (2000 & 2013 Supp.).

       The Majority opinion finds that the “knowing or reckless” element is satisfied in this

case as a result of Mr. Frost’s failure to participate in the proceedings below and to respond

to requests for admissions. In other words, he is deemed to have admitted the intent element

of the violation, which, in the view of the Majority opinion, relieves us of the need to

consider the actual content and circumstances of his e-mail, or the standard by which the

statements in question should be judged. Majority slip op. at pp. 13, 18-19 n.11.

       Requests for admissions are typically used to obtain agreement as to the genuineness

                                               2
of documents, the establishment of other foundational facts necessary for the admission of

evidence, or the truth of uncontested facts, thereby streamlining the adjudication of a matter.

See, e.g., P. Niemeyer & L. Schuett, Maryland Rules Commentary 336 (3d ed. 2004)

(“Requests for admissions of fact serve a limited but useful function.... The purpose of the

rule is ... to eliminate from trial those matters over which the parties truly have no dispute”).

While I do not fault Bar Counsel, or any other litigant, for seeking to have an opposing party

concede the entire case through this discovery device, requests for admission that concern

the ultimate issue in a case are generally not that useful and thus are not enforced.2 Id. And

when a request on an ultimate issue is “deemed” admitted, it may be more accurately

characterized as a default than a finding or holding on the particular issue. Thus, the deemed

violation of MLRPC 8.2(a) is largely an echo of the violation of MLRPC 8.1(b) – the failure

to respond adequately to Bar Counsel’s inquiry or to participate in the proceedings below.

Perhaps the peculiar facts of this case – or the unusual way in which the ultimate issue has

been determined – limit the significance of the Court’s holding. On the other hand, it may




       2
        In the instant case, the Request for Admission of Facts and Genuineness of
Documents largely concerned the genuineness of numerous items of correspondence
involving Mr. Frost, as well as basic facts concerning his legal career and the content of
statements he made. However, it also asked him to admit that he made various statements
“knowing that the statement was false” and, with respect to the same statements, “with
reckless disregard as to its truth or falsity.” Among the other facts deemed admitted was that
Mr. Frost is “unable to render adequate legal service by reason of mental or physical illness
or infirmity, or addiction to or dependence upon an intoxicant or drug.” This last deemed
admission concerning mental capacity conceivably raises a question about the two deemed
admissions concerning the intent element.

                                                3
establish an unfortunate precedent.

       I suspect that few lawyers – or judges – have not, at some time, uttered an unkind and

undeserved criticism of a judge, an Attorney General, a State’s Attorney, or a Public

Defender. No doubt there have been occasions where an attorney, in the aftermath of an

adverse ruling, has commented on the parentage of the judge in a way that, even without the

benefit of a “deemed admission,” is obviously and literally false, but is essentially a

statement of opinion rather than fact. Perhaps such remarks are usually made to those who

share the sentiment and, unlike the instant case, do not generate a complaint. But whether

there is a violation of MLRPC 8.2(a) should not depend on the sympathies or sensitivities of

the listener.3   In the end, the rule is aimed at intentional factual misstatements, not rude

opinions.4

       The summary of case law in the Majority opinion is certainly accurate. I add four

observations.

       3
        In her concurring opinion, Judge Adkins sensibly attempts to limit the reach of the
Majority opinion, suggesting a sort of “friends and family” exception to its holding based on
the First Amendment. The Restatement of the Law Governing Lawyers adopts a similar
approach in limiting the restriction on attorney speech about judges to statements made
“publicly” – a qualification not included in MLRPC 8.2(a). See Restatement §114. In any
event, the authors of the Restatement – as well as the drafters of the model for MLRPC 8.2(a)
– intended that the New York Times standard be satisfied. And the First Amendment is not
confined to discussions among like-minded people, but rather designed to encourage and
protect public discourse. See, e.g., Whitney v. California, 274 U.S. 357, 376 (1927)
(Brandeis, J., concurring); Snyder v. Phelps, 131 S.Ct. 1207, 1215-17 (2011).
       4
        This was certainly the intent of the drafters of the model rule that became MLRPC
8.2(a). See American Bar Association, Model Rules of Professional Conduct, Proposed Final
Draft (May 30, 1981) at 207 (“Rule 8.2 applies to a statement of fact.”).

                                              4
       First, as the authors of the Restatement noted, civil liability for criticism of a public

official is limited to false statements made with actual malice – i.e., knowledge of falsity or

reckless disregard of falsity. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In the

context of critical remarks about judges, the Supreme Court has stated that “only those false

statements made with the high degree of awareness of their probable falsity demanded by

New York Times may be the subject of either civil or criminal sanctions.” Garrison v.

Louisiana, 379 U.S. 64, 74 (1964) (reversing conviction of district attorney who stated that

“vacation-minded” judges sympathetic to racketeering interests were responsible for court

backlog and impeding vice investigations).

       Second, the drafters of MLRPC 8.2(a) intended to incorporate the standards

articulated in Garrison and New York Times in that rule. See American Bar Association,

Model Rules of Professional Conduct, Proposed Final Draft (May 30, 1981) at 206 (“Rule

8.2 is consistent with that limitation [in New York Times and Garrison]”); M. Tarkington,

The Truth be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97

Geo. L.J. 1567, 1587 & n. 123 (2009). (As the Majority opinion recounts, some courts have

instead chosen not to apply the New York Times standard in favor of a less demanding,

“objective” standard. Majority slip op. at p.19 n.11).

       Third, the decisions of this Court under MLRPC 8.2(a) that are relied upon by the

Majority opinion all involved statements alleging specific acts of misconduct rather than a

general negative characterization of the officials. See Attorney Grievance Comm’n v.



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McClain, 406 Md. 1, 956 A.2d 135 (2008) (in appeal to circuit court, attorney alleged that

District Court judge had admitted personal bias against him and purported to “document” that

allegation with false statements about the content of the record); Attorney Grievance Comm’n

v. DeMaio, 379 Md. 571, 842 A.2d 802 (2004) (attorney alleged, without factual basis, that

judge had ex parte contact with opposing party, had possibly received a “monetary benefit”

from that party, and had colluded to remove briefs from public record); Attorney Grievance

Comm’n v. Hermina, 379 Md. 503, 842 A.2d 762 (2004) (attorney accused judge of holding

ex parte jury instruction conference with opposing counsel in violation of the Code of

Judicial Conduct). In this case, only the statements concerning Judge Harrington – i.e., that

she allegedly arranged for deputy sheriffs to “illegally” arrest Mr. Frost – appear to go

beyond derogatory adjectives.

       Finally, discipline imposed by the judiciary that may appear designed to shield judges

from general statements of adverse opinions can itself undermine confidence in the judiciary.

See J. Dodd, The First Amendment and Attorney Discipline for Criticism of the Judiciary:

Let the Lawyer Beware, 15 N. Ky. L. Rev. 129, 144 (1988).

       At this intersection of statements of fact and statements of opinion, of protected

speech and public officials, it is best to proceed with caution. I would not impose discipline

on the basis of a “deemed admission” of the critical intent element. Rather, we should hold

the charges under MLRPC 8.2(a) and 8.4(c) in abeyance. If Mr. Frost were suspended on

the basis of the other charged violations, and were later to satisfy the conditions for



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readmission and cooperate with Bar Counsel’s inquiry, I would remand the matter to the

hearing judge for further consideration of the remaining charges. See Maryland Rule 16-

759(c)(6). But I would not disbar under MLRPC 8.2(a) and 8.4(c) at this time on this record.




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